People v. Bennett, Analytic Approaches, 1996 B.Y.U. L. Rev. 183


*183 PEOPLE v. BENNETT: ANALYTIC APPROACHES TO RECOGNIZING A FUNDAMENTAL PARENTAL RIGHT UNDER THE NINTH AMENDMENT [FNa]

Copyright 1996 by the Brigham Young University Law Review; Daniel E. Witte; cite as: Daniel E. Witte, Comment, People v. Bennett: Analytic Approaches to Recognizing a Fundamental Parental Right Under the Ninth Amendment, 1996 B.Y.U. L. Rev. 183.

 
                                Table of Contents

                               
 I.    INTRODUCTION ........................................................ 186
 

II    BACKGROUND: THE HISTORICAL EVOLUTION OF UNITED STATES PARENTAL           
         RIGHTS JURISPRUDENCE .............................................. 190
       
A. English and Early American Common Law Pertaining to Parental          
         Rights ............................................................ 190
 
      
B. Analysis of Parental Rights Under the Constitution ............... 193
       
C. Emergence of an Alternative Education Subculture ................. 195
 

III.  PEOPLE V. BENNETT ................................................... 198
       
A. Facts ............................................................ 199
       
B. Reasoning of the Michigan Supreme Court .......................... 201
       1. The Ruling ....................................................... 201
       2. Points of disagreement between majority and dissent .............. 203
       a. Bennett majority analysis characterizing parental right as            
         nonfundamental..................................................... 204
       b. The dissent in Bennett ........................................... 205
 

IV.   A NINTH AMENDMENT ANALYSIS OF THE BENNETT DECISION RESPECTING THE        
         EXISTENCE AND SCOPE OF A FUNDAMENTAL RIGHT TO DIRECT THE               
         UPBRINGING OF A CHILD ............................................. 206
       
A. Introduction: The Analytic Difficulty ............................ 206
       
B. A Teleological Interpretation of the Ninth Amendment ............. 208
       
C. Approach #1: Natural Law Theory .................................. 210
       1. Precedent for protecting as a natural parental right under the        
         Ninth Amendment ................................................... 210
       2. A unitary, expansive parental right .............................. 212
       3. The Bennett rebuttal to the unitary right approach: redefining        
         one parental right into an indeterminent collection of fragmented,     
 
        illusory rights ................................................... 215
       
D. Approach #2: Original Intent ..................................... 217
       1. Analytical framework of original intent approach ................. 217
       2. American common law afforded strong and unquestioned deference to     
         parental decisions respecting the upbringing of a child ........... 218
       3. Original intent analysis supports granting strong deference to        
         parental authority, because American common law afforded the           
         rebuttable presumption that parents were acting out of an interest     
         shared with their child ........................................... 219
       4. Public policy scrutiny specific to the modern relevance of early      
         American common law: criticism of the common law presumption of a      
         common parent-child interest ...................................... 221
       5. The principles of early American common law respecting parental       
         rights are clear and constitute sound policy today ................ 228
       
E. Approach #3: Public Policy and the State's Compelling Interest ... 235
       1. Nature of policy analysis ........................................ 235
       2. Policy arguments justifying a rational basis standard of              
         protection for parental rights .................................... 236
       3. Preservation of a democratic republic based on social diversity       
         and pluralism ..................................................... 239
       a. The totalitarian elimination of parental rights: an ideological       
 
        alternative to the American common law approach.................... 244
       b. The alternative to parental rights used for historically              
         unpopular American subcultures: United States campaigns of             
         cultural genocide ................................................. 249
       4. Options for redress of government agencies' errors in overriding      
         parental decisions ................................................ 255
       5. Summary of public policy analysis ................................ 258
 

V.    CONCLUSION .......................................................... 259
 

APPENDIX A: TEXT OF THE BILL FOR THE PARENTAL RIGHTS AND RESPONSIBILITIES      
   ACT OF 1995 ............................................................. 263
 

APPENDIX B: DEALING WITH DIVERSITY ........................................ 267
 

APPENDIX C: LIST OF PRINCIPAL SOURCES ..................................... 271
  
 
*186


The hand that rocks the cradle is the hand that rules the world.
--William Ross Wallace


I. INTRODUCTION

The bond between parents and their children is one of the most powerful of human relationships. Policies respecting parent-child relationships have profound ramifications for society as a whole. Thus, it comes as no surprise that parental rights issues have become a hotly debated area of legal jurisprudence. The heart of the debate is the question of how to resolve situations in which the state attempts to override parental decisions respecting the upbringing and care of a child.

People v. Bennett, [FN1] a Michigan Supreme Court case set in an education factual context, capsulates in microcosm the fierce, divisive, erratic, yet strangely low-profile legal debate that has raged over parental rights for most of the twentieth century. As a result, Bennett affords an important occasion to consider an issue that is rarely addressed directly by the courts: whether, under the Ninth Amendment, parents have a fundamental right [FN2] to direct the upbringing of their children. [FN3] If such a fundamental right exists, state attempts to override parental decisions [FN4] respecting the upbringing of a child are *187 subject to the strict scrutiny test. [FN5] Typical application of strict scrutiny would require the state to provide compelling evidence to justify state interference.

Part II of this Comment compares the standard of deference accorded parental rights under early American common law and the deference granted parental rights in recent court decisions such as People v. Bennett. Part II also sets forth three interpretive theories of the Ninth Amendment that have emerged in support of a fundamental right of parents to direct the upbringing of their children.

In addition, Part II highlights the disparity that some perceive between the expansive language higher courts have used to characterize constitutionally protected parental rights and the lack of deference many lower courts actually show when applying parental rights within specific fact settings. The failure of many courts, as in Bennett, to accord strict scrutiny deference to parental rights has evoked a grass-roots parental rights movement. One manifestation of grass-roots frustration *188 is the Parental Rights and Responsibilities Act of 1995, [FN6] proposed in the 104th Congress.

Part III sets forth the facts in People v. Bennett. It summarizes the majority's rationale for determining that parents do not have a fundamental constitutional right to direct the upbringing of their children, and also examines the dissent. The Comment traces the difference of opinion as to the existence of a fundamental right back to three sources: (1) disparate interpretations of convoluted legal precedent; (2) divergent views as to whether there is one unified parental right, or a collection of mini-rights collectively known as parental as parental rights; and (3) conflicting opinions over whether public policy favors the existence of a fundamental parental right.

This Comment will not attempt to explore the nuances in language contained in all the potentially applicable case law. Nor does this Comment attempt to identify every scholarly writing on parental rights issues. Instead, it approaches parental rights by considering these rights in light of pertinent legal interpretive philosophies and policy considerations. [FN7] This facilitates the establishment of a consistent, alternative framework for judicial evaluation of parental rights. *189

Part IV of this Comment adopts a teleological view of the Ninth Amendment; it assumes that the Ninth Amendment is to have practical efficacy in constitutional jurisprudence. Part IV then sets forth three independent interpretive theories of the Ninth Amendment that have been used by parental rights advocates in support of a fundamental right to direct the upbringing of a child: natural law theory, original intent interpretation, and public policy analysis. Arguments in opposition to each of these three theories are recognized, as are the implications of using the strict scrutiny test in matters implicating a fundamental parental right to direct the upbringing of a child. The Comment suggests that derogation of family relationships is at least as destructive [FN8] to a culture as the seizure of natural resources, a denial of free expression, or a denial of political representation.

This Comment concludes that, based on both legal theory and policy considerations, there is in fact a single expansive, fundamental right to direct the upbringing of one's children protected under the Ninth Amendment. The Ninth Amendment is an independent, though not necessarily exclusive, source of constitutional protection for this right. The parental right to direct a child's upbringing is not absolute. Yet in cases where no clear interests of any party other than state, child, and *190 parent [FN9] are at issue, any attempted governmental curtailment of the parental right to direct the upbringing of one's child should be subjected to strict scrutiny.

Regardless of the nature of the government interference or the particular interest of the child at issue, it should be incumbent upon the state to provide compelling evidentiary justification for interference with parental decision-making. The rational basis rule adopted by Bennett forces parents to provide conclusive evidence that the state's interference has no rational possibility for positively effectuating a legitimate state goal. As a practical matter, this standard is extremely difficult for parents to satisfy.


II. BACKGROUND: THE HISTORICAL EVOLUTION OF UNITED STATES PARENTAL RIGHTS JURISPRUDENCE

A. English and Early American Common Law Pertaining to Parental Rights

Blackstone, the renowned commentator on English common law, "deemed 'the most universal relation in nature . . . [to be] that between parent and child."' [FN10] "At the common law of England, a parent's right to custody and control of minor children was a sacred right with which courts would not interfere except where by conduct the parent abdicated or forfeited that right." [FN11] The home was considered "the keystone of the governmental structure." [FN12] "[T]he fundamental freedom of controlling the education and socialization [FN13] of one's children," [FN14] *191 including the child's "maintenance[,] . . . protection," [FN15] and "'[t]he right . . . to speak for the minor child,"' [FN16] was recognized at common law well into the twentieth century. The economic and political upheaval that accompanied America's post-Civil War Industrial Revolution resulted in a societal trend disfavorable towards parental rights, [FN17] particularly in situations *192 involving the parental rights of unpopular ethnic and religious subcultures. [FN18]

Consistent with the common law's deference to parental acts of maintenance, protection, and representation, early common law also accorded presumptive deference to educational decisions. Broad authority was accorded parents who were not interfering with the activities of anyone but their own child. [FN19] *193 Accordingly, parents retained the right to "withdraw children entirely from the public schools and send them to private schools, or provide for them other means of education." [FN20]

B. Analysis of Parental Rights Under the Constitution

Since the ratification of the Fourteenth Amendment, [FN21] the focus of the parental rights jurisprudence has gradually shifted from common law to constitutional law. Advocates of parental rights often identify the Ninth Amendment [FN22] as one primary source of constitutional protection for parental rights. [FN23] They assert that parental rights fall into the category of "other rights retained by the people," and that the Fourteenth *194 Amendment affords protection against federal or state infringement upon a fundamental parental right. [FN24] If there is a fundamental parental right, strict scrutiny must then be applied to any government interference with decisions made in exercise of that right. [FN25]

Supreme Court decisions such as Pierce v. Society of Sisters, [FN26] Meyer v. Nebraska, [FN27] and Wisconsin v. Yoder, [FN28] all seem to indicate that parental rights in some measure are protected under the Constitution. [FN29] Unfortunately, the Supreme Court cases that most directly support parental rights in the context of constitutional jurisprudence, such as Pierce and Meyer, were decided before the rational basis and strict scrutiny standards had been clearly formulated and uniformly applied. [FN30] Later cases, such as Griswold v. Connecticut [FN31] and Yoder, cited Pierce and Meyer. [FN32] However, these later cases typically provided no general analytical framework, were heavily permeated with other constitutional issues such as Free Exercise [FN33] or privacy rights, [FN34] had curious fact patterns involving rights of third parties, [FN35] restricted the applicability of *195 the holding, [FN36] and/or involved substantial plurality opinion language. [FN37] As a result, the case law language is so confused that it is susceptible to widely divergent interpretations. [FN38]

C. Emergence of an Alternative Education Subculture

In the 1970s and 1980s, a new subculture of alternative educators [FN39] emerged on a widespread basis, affording a new *196 venue for the debate over parental rights. Alternative educators, for an increasingly wide range of religious and secular reasons, elected to educate children at home or in unaccredited private schools, instead of conforming to public school institutional attendance and accreditation policies.

Public educators responded to the alternative education movement by attempting to compel parents to send their children to state-approved institutions. [FN40] Initially, public educators *197 generally prevailed on statutory grounds, usually in lower courts. Typically, prosecutors in the lower courts did not prove or even allege that the children were being inadequately educated because of parental decisions. [FN41] During roughly the same period, lower courts became especially active, in a variety of contexts, in overturning the early American common law precedent that favored broad parental rights. [FN42] However, as alternative educators began to challenge state actions in high courts on various constitutional grounds, the alternative educators began to prevail. [FN43] *198


III. PEOPLE V. BENNETT

It is against this background that Bennett arose. During the 1980s, Michigan public education officials mounted a statewide effort to compel all school-age children to attend accredited educational institutions staffed with certified teachers. This effort met with stiff resistance from private religious schools lacking state accreditation and from home educators. [FN44] The certification and accreditation requirements, if enforced against home educators, effectively would have precluded home education for the vast majority of families due to the narrow criteria applied when granting such status. [FN45] Thus, Bennett was part of what probably was one of the last campaigns to effectively eradicate alternative education on a statewide basis. [FN46] *199

Bennett has evoked widespread grass-roots criticism from alternative educators and family rights advocates. Frustration with Bennett and similar decisions has led to the introduction of the Parental Rights and Responsibilities Act of 1995, [FN47] which is currently under congressional consideration.

A. Facts

John and Sandra Bennett were the parents of four children: Scott, Erika, Jason, and Krista. All four children were between the ages six and sixteen, and thus were subject to the requirements of Michigan's compulsory school attendance law. [FN48] The four children attended public schools in the Plymouth-Canton district in Wayne County, near Detroit. [FN49] However, Scott's academic performance fell below standard, [FN50] and the Bennetts became dissatisfied with the quality of education their children were receiving. [FN51] The Bennetts' dissatisfaction stemmed not from religious conviction, but solely from their disagreement with the school district's pedagogical philosophy. [FN52]

After weighing the option of private school, the Bennetts elected to home educate their children. [FN53] They "believed that they could provide their children a better education than the *200 local public school, even though neither parent was a certified teacher." [FN54] The Bennetts did not re- enroll their children in public school the following academic year. Enlisting the aid of a home education support organization, Clonlara, Inc., they taught their children math, English, spelling, reading, writing, science, social studies, history and art for five hours a day, five days per week. [FN55] At the end of that academic year, standardized achievement test results indicated that Scott had made steady progress towards his proper grade level. Jason was at his proper grade level, while Erika and Krista tested above their grade levels. [FN56]

Despite the fact that the Bennetts were providing an education for their children at home, the Bennetts were criminally convicted of violating Michigan's compulsory attendance laws. [FN57] Prosecutors did not criticize the Bennetts' performance in providing a quality education, but based their case on the fact that the Bennetts did not utilize certified instructors. [FN58] The Bennetts were fined, ordered to subject their children to public school placement tests, and required to utilize certified teachers for their children's education. [FN59]

The Bennetts sought to overturn the convictions on the ground that the certification requirement violated "the power of parents to control the education of their own children" [FN60] mentioned in Meyer v. Nebraska [FN61] and Bartels v. Iowa. [FN62] The Bennetts contended that such power was a component of a fundamental parental right protected by the Fourteenth Amendment of the United States Constitution. [FN63]

Distinguishing Bennett from People v. DeJonge, [FN64] a companion *201 case which involved an additional free exercise defense, the court explained that parental rights alone, as exercised in an exclusively secular manner, were insufficient to prevent the state from overriding parental control concerning the selection of those who instruct their children. [FN65]

B. Reasoning of the Michigan Supreme Court

1. The Ruling

The court in Bennett held "that the teacher certification requirement [was] not violative of substantive due process guaranteed by the Fourteenth Amendment," [FN66] because "a *202 parent's Fourteenth Amendment right to direct a child's education is not . . . fundamental, and, thus, the strict scrutiny test is unwarranted." [FN67] The court added that "state interference with such rights deserves strict scrutiny only within the context of the First Amendment." [FN68] Instead of the strict scrutiny test which it applied in the DeJonge case, [FN69] the court in Bennett applied the "rational relationship" standard. [FN70]

The Michigan Supreme Court defined the "rational relationship" standard as "not requir[ing] the least intrusive or the most creative regulatory scheme." [FN71] The certification requirements need only be "a reasonable means to a legitimate state interest." [FN72] Further, the state need not contest the adequacy of the defendants' instruction or demonstrate that teacher certification bore a reasonable relationship to a legitimate state interest. [FN73] Instead, the court ruled that "it was defendant's burden to prove the unreasonableness of the certification requirement" [FN74] and that "a challenge fails if the relationship between certification or other state mandate and the legitimate state interest is "'at least debatable.""' [FN75]

In contrast to the "rational relationship" standard, "strict scrutiny" in the context of Bennett [FN76] would have demanded that (1) "a state regulation be justified by a compelling state interest," [FN77] (2) "the means chosen be essential to further that interest," [FN78] (3) "a compelling state interest . . . be truly compelling," [FN79] and (4) the state bears the "burden of showing that *203 the teacher certification requirement is the least intrusive means of discharging its interest in the education of the . . . children." [FN80]

2. Points of disagreement between majority and dissent

The key point of disagreement [FN81] between the majority and the dissent in Bennett was the issue of whether the parental right in question was a fundamental right. [FN82] "This issue is crucial because where governmental regulation impinges upon a fundamental constitutional right, the normal presumption of constitutionality accorded to governmental action is inverted. . . T he Court will insist that the governmental action be *204 justified as necessary . . . ." [FN83] Instead of asking the usual question whether the regulation has any conceivable rational basis, the court would have applied strict scrutiny to the state certification requirement if a fundamental right had been initially recognized. [FN84]

The difference of opinion as to whether strict scrutiny should apply to Bennett resulted from different views as to (1) how to interpret and weigh past legal precedent and (2) how to prioritize legal interpretive philosophies and public policy considerations underpinning parental rights.

a. Bennett majority analysis characterizing parental right as nonfundamental. The majority and minority reviewed several Supreme Court decisions, each citing some dicta that appeared to support its view of whether parents have a fundamental right to direct the manner of their children's education.

The majority relied heavily on its interpretation of concepts expressed in two different cases by the United States Supreme Court. In Runyon v. McCrary, [FN85] the Supreme Court stated that parents "have no constitutional right to provide their children with private school education unfettered by reasonable government regulation." [FN86] In another Supreme Court case, Wisconsin v. Yoder, [FN87] Wisconsin sought to enforce compulsory attendance laws over Amish religious objections. After ruling in favor of the Amish, the Court added in dicta that "subjective evaluation and rejection of the contemporary secular values . . . is philosophical and personal rather than religious, and such belief does not rise to the demands of the Religion Clauses." [FN88]

Noting Runyon and Yoder, the Bennett majority asserted that "defendants have not presented any case that finds the existence of a Fourteenth Amendment fundamental right of parents to direct their children's secular education free of reasonable *205 regulation." [FN89] Furthermore, " no court has held that parents have a fundamental right to direct their children's education under all circumstances." [FN90]

b. The dissent in Bennett. Justice Riley's opinion for the dissent also cited Supreme Court opinions, [FN91] focusing on language favoring "broad parental authority over minor children," [FN92] recognizing that "bonds of affection lead parents to act in the best interests of their children," [FN93] and rejecting "any notion that a child is 'the mere creature of the State."' [FN94] Other quoted opinions stated that "the tradition of parental authority . . . is one of the basic presuppositions of our tradition of individual liberty ," [FN95] espoused the "liberty of parents and guardians to direct the upbringing and education of children under their control," [FN96] and deemed the right to raise one's child as "'essential,' a 'basic civil right of man,' and a ' r ight far more precious . . . than property rights."' [FN97]

Although the majority did not address the point, Justice Riley explained the reason for differing interpretations of legal precedent by the Michigan Supreme Court majority and minority:

[There is apparently] confusion arising from applying Supreme Court pronouncements of the 1920s and 1930s in modern cases. Earlier this century, *205 the Supreme Court had yet to develop the varying degrees of scrutiny ubiquitously applied in the modern era. The recognition of a constitutional right did not necessarily result in a clear specification of the particular degree of scrutiny to be applied. In fact, the Court not only explicitly recognized "fundamental rights of the individual" . . . but at the same time articulated a reasonableness standard. . . . Adding to the confusion was the Court's practice to articulate a reasonableness standard, while the application *206 of that standard often left no doubt that much stronger scrutiny was to be applied. [FN98]


Justice Riley thus recognized that federal and state court decisions, at all levels, have provided only minimal guidance concerning parental rights. Due to the volatility and complexity of the issue, courts tend to render indecisive, inconsistent opinions in major cases respecting parental rights. [FN99]

Justice Riley, acknowledging convoluted legal precedent, argued that sound public policy, in addition to original intent and natural rights analysis, supported broad parental rights. In articulating her principle policy objection, Riley wrote that "not only is family autonomy essential to the transmission of republican values, . . . it is a strong hedge against tyranny." [FN100] The majority did not address either of Justice Riley's above contentions respecting precedent or policy.


IV. A NINTH AMENDMENT ANALYSIS OF THE BENNETT DECISION RESPECTING THE EXISTENCE AND SCOPE OF A FUNDAMENTAL RIGHT TO DIRECT THE UPBRINGING OF A CHILD

A. Introduction: The Analytic Difficulty

Parental rights issues are particularly difficult for the courts. Policy concerning parental rights has a profound impact on nearly every aspect of society, so judges face a strong political backlash unless they handle parental rights cases to the satisfaction of entrenched interests. The issue is strongly polarized along ideological lines, is not conducive to compromise, and defies the more conventional methods of legal analysis. In short, parental rights jurisprudence is a legal lightning rod that most courts seek to avoid.

Courts that fall on opposite sides of the parental rights debate frame the issue very differently. Advocates of strong parental rights tend to focus on early American common law, natural law, and the affirmative parental rights language in U.S. Supreme Court decisions. [FN101] Public policy arguments as *207 to parental rights are often not explored in as much detail. Judges that favor constricted parental rights, on the other hand, rarely mention early American common law or natural rights. [FN102] Typically, such courts focus on only those policy arguments which are adverse to parental rights. Courts seeking to limit parental rights utilize more lower court decisions, discussing U.S. Supreme Court case law only in terms of identifying what state activities the language does not explicitly prohibit.

In Bennett, the majority dismissed the minority's legal precedent as "dicta," [FN103] while at the same time downplaying its own conspicuous reliance on dicta to support basic premises of its position. [FN104] As previously noted, advocates on either side of the parental rights debate can extrapolate language, often from the same case cited by their opposition, which appears to support their position. [FN105]

Rather than enmesh itself in such selective semantics, this Comment will utilize an alternative, cohesive framework for ascertaining the existence and scope of a fundamental parental right under the Ninth Amendment. It will discuss natural law, early American common law, and public policy arguments respecting parental rights. The three approaches will be addressed separately, but relationships between the three approaches will also be identified. *208

B. A Teleological Interpretation of the Ninth Amendment

This discussion of parental rights will be premised upon a teleological [FN106] interpretation of the Ninth Amendment. In contrast to former Judge Robert Bork's inopportune view that the Ninth Amendment is simply an "ink blot," [FN107] this discussion will proceed on the assumption that various methods of *209 interpretation can capably effectuate the Ninth Amendment's critical function within the Constitution. [FN108] Although a functionl *210 Ninth Amendment is not necessarily an essential premise to constitutionally derived parental rights, [FN109] such functionality is taken as a necessary premise to the analysis herein.

This Comment will now consider the rationale for broadly or narrowly construing, as applicable, a parental right under the Ninth Amendment, using three independent approaches: (1) natural law theory, (2) original intent interpretation, and (3) public policy analysis. These three approaches, separately or in combination, can colorably support parental rights under nearly any permutation of Ninth Amendment interpretation.

C. Approach #1: Natural Law Theory

1. Precedent for protecting as a natural parental right under the Ninth Amendment

The first Ninth Amendment interpretive framework stems from the premise that Ninth Amendment protection encompasses the natural rights of humanity. [FN110] Such a framework assumes as a "self-evident" truth that people have "certain unalienable Rights," derived from "the Laws of Nature," such as "Life, Liberty, and the Pursuit of Happiness." [FN111] The key question under this framework is whether the United States' constitutionally derived form of government was instituted, in part, to secure the parental rights of those whom it governs. [FN112]

Various courts have recognized that "the right of a parent, under natural law, to establish a home and bring up children is *211 a fundamental one and beyond the reach of any court." [FN113] Such courts acknowledge "the prior and fundamental right of a parent to rear his child , and concomitantly, . . . the right of the child to be reared by his natural parent." [FN114] In the case of In re J.P., [FN115] Justice Oaks of the Utah Supreme Court explained:

The rights inherent in family relationships--husband-wife, parent-child, and sibling--are the most obvious examples of rights retained by the people. They are "natural," "intrinsic," or "prior" in the sense that our Constitutions presuppose them . . . .
. . . .
This parental right transcends all property and economic rights. It is rooted not in state or federal statutory or constitutional law, to which it is logically and chronologically prior, but in nature and human instinct. Thus, the United States Supreme Court has declared that "the liberty interest in family privacy has its source . . . in intrinsic human rights. . . ."
. . . .
. . . In the words of one family scholar:

Men and women in most cultures have long viewed their offspring as somehow being an extension of themselves, and as more than mere "property." . . . Thus, it is not surprising that common law judges refer to parental interests as "sacred," "natural," or "fundamental" rights, especially when the constitutional standard for a "fundamental" right is whatever judges find when they "look to the 'traditions and [collective] conscience of our people' to determine whether a principle is 'so rooted [there] . . . as to be ranked as fundamental.' The inquiry is whether a right involved 'is of such character that it cannot be denied without violating those "fundamental principles of liberty and justice which lie at the base of all our civil and political institutions.""' [FN116] *212


"The [Supreme] Court has frequently emphasized the importance of the family. The rights to conceive and raise one's children have been deemed 'essential,' 'basic civil rights of man,' and '[r]ights far more precious . . . than property rights."' [FN117] The child's "favored, beneficent status in our social and legal systems does not detract from the well-settled rule that the right of parents to the custody of minor children is both a natural and a legal right." [FN118]

2. A unitary, expansive parental right

As a practical matter, there must be one expansive parental right to direct the upbringing of a child under natural law theory, as well as under the original intent and public policy approaches, if the intimate parent-child relationship is to be protected. This point is crucial and merits further consideration, because a court that explicitly or implicitly identifies a unitary, expansive parental right is very likely to adopt reasoning that favors deference to parental discretion.

As an initial matter, it is instructive to note the language courts in support of strong deference tend to use in characterizing what functions "'one of the highest of natural rights"' encompasses. [FN119] For example, one court noted:

As long as parents properly exercise their duty, under their natural rights, to rear, educate, and control their children, their right to do so may not be interfered with solely because . . . some other institution might be deemed better suited for that purpose. The children of the poor cannot be taken from them, and awarded . . . to some rich and powerful institution, merely because such . . . institution might, in the judgment of the court, do a better part by the child than the natural parents. [FN120] *213


Another court identified the link between legal protection of parental custody over a child and legal protection for the parent's control over the child's environment and activity, and advocated uniform protection for both facets of parental discretion:

[A] statute . . . cannot be constitutional . . . because there is only a "little" infringement on family autonomy. Rather, . . . there is no constitutionally permissible infringement of parental rights to custody and control without a showing of harm to the child. [FN121]


Such courts therefore recognize one expansive "fundamental liberty interest of natural parents in the care, custody, and management of their child." [FN122] "Care, custody, and management" of a child necessarily encompasses all aspects of a child's development, which results from the child's upbringing. [FN123]

Care, custody, and management of a child are inextricably interrelated as a practical matter; each is nearly meaningless without the others. [FN124] Cases pertaining to parental rights regarding naturally arising childbearing, custody, companionship, child rearing, and education functions all are properly considered to affect "the basic reason[ [FN125] why certain rights associated *214 with the family have been accorded shelter under the Fourteenth Amendment's Due Process Clause." [FN126]

Liberty is "a rational continuum [FN127] which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints." [FN128] The implication of one expansive parental right is that when the state challenges a parental decision regarding, for example, the child's education, medical care, or religious upbringing, the state simply challenges one or more facets of the same parental liberty interest in the care, custody, and management of a child. [FN129] This is a practical reality regardless of whether the parental rights arising in conjunction with the naturally arising parental right are deemed to arise from natural law, or from some other source. *215

3. The Bennett rebuttal to the unitary right approach: redefining one parental right into an indeterminent collection of fragmented, illusory rights

As mentioned in Part III, the Bennett majority consistently couched the parental rights issue before them in terms of a "fundamental right in parents to direct the education of their children," [FN130] instead of characterizing the question as a parental rights issue. Since Meyer v. Nebraska [FN131] explicitly mentions "the power of parents to control the education of their own," [FN132] the Bennett majority thus was forced to add even more stipulations to justify its holding. [FN133] The majority did so by asserting that "defendants have not presented any case that finds the existence of a Fourteenth Amendment fundamental right of parents to direct their children's secular education free of reasonable regulation," [FN134] and " no court has held that parents have a fundamental right to direct their children's education under all circumstances." [FN135]

By portraying one constitutional parental right as a collection of myriad, fragmented, distinct individual "mini-rights," the Bennett majority facilitated a framework for according a parent's right to direct a child's education a less deferential *216 standard than, for example, courts have traditionally afforded to the right of child custody. [FN136]

The approach of the Bennett majority essentially allows a court to define every narrow exercise of parental action as a separate right. Each distinct question can then conveniently be accorded a different level of deference according to the sentiment of the court. [FN137] The Bennett majority opened the door for courts to redefine parental rights out of existence.

Parental rights are not a collection of numerous mini-rights, each to be afforded different degrees of scrutiny. Courts should apply strict scrutiny to protect the single, expansive, fundamental liberty interest of natural parents in the care, custody, and management of their child. Strict scrutiny should be applied regardless of what aspect [FN138] of a child's upbringing *217 the state seeks to override or limit. [FN139] Applying strict scrutiny does not create an impractical or unjust absolute parental right, [FN140] nor does it denigrate a child to the same status as "mere chattel;" [FN141] applying strict scrutiny merely insures that adequate procedures operate to prevent unwarranted state intrusion into private family functions.

Theoretically speaking, one need not accept natural right theory as a prerequisite step to finding for the existence of a fundamental Ninth Amendment right to direct the upbringing of one's child. However, it is important to analyze natural right theory, because natural right, original intent, and public policy analysis share many elements of analysis in common. [FN142] As previously discussed, natural right analysis tends to favor strong state deference to parental decisions affecting the parent-child relationship.

D. Approach #2: Original Intent

1. Analytical framework of original intent approach

The Ninth Amendment protects rights "retained by the people." Hence, it is instructive to examine the English and early American common law when evaluating constitutional protection of parental rights. An examination of the rights held by the people at the time the Constitution was adopted can be used to help define what rights were "retained" under the *218 Ninth Amendment. [FN143] Such an inquiry assumes, of course, that "' c onstitutions do not change with the varying tides of public opinion and desire; the will of the people therein recorded is the same inflexible law until changed by their own deliberative action,"' [FN144] and "the meaning taken to be intended by the people is to be found in their common experience." [FN145]

2. American common law afforded strong and unquestioned deference to parental decisions respecting the upbringing of a child

As noted in Part II, American common law gave strong deference to parental decisions regarding all aspects of a child's upbringing. "The integrity of the family and the parents' inherent right and authority to rear their own children have been recognized as fundamental axioms of the Anglo-American culture, presupposed by all our social, political, and legal institutions." [FN146] "This primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition." [FN147] Indeed, some cases using the original intent interpretive approach suggest that common law incorporated parental rights as a natural right, [FN148] thereby *219 suggesting that original intent and natural rights analysis are completely congruous as to parental rights.

Ironically, the early American presupposition of the fundamental nature of parental rights is perhaps one of the very factors that has led to its less- honored status relative to other related basic rights such as freedom of expression or religion. Such a fundamental right can be "so generally admitted, and so seldom contested, that there [is] little occasion for its distinct assertion" [FN149] until the time when the right is most needed. Indeed, it probably never occurred to the Framers of the Constitution that parental rights could, as a practical matter, ever be called into question or challenged on a comprehensive scale by state apparatus. [FN150]

3. Original intent analysis supports granting strong deference to parental authority, because American common law afforded the rebuttable presumption that parents were acting out of an interest shared with their child

"It is fundamental to our jurisprudence that 'the custody, care and nurture of the child reside first in the parents."' [FN151] *220 Early common law, as well as many modern common law decisions, protected parental rights by in effect presuming not only that parents shared a common interest with children, [FN152] but that the state shared a common interest with the parent. [FN153]

Under early common law it was incumbent on the state first to show that the child, state, and parental interests were disparate, and second to show that some interest was sufficiently compelling to override parental custody. [FN154] "Simply because the decision of a parent is not agreeable to a child or because it involves risks did not automatically transfer the power to make that decision from the parents to some agency or officer of the state." [FN155] Courts noted that " t he statist notion that governmental power should supersede parental authority in all cases because some parents abuse and neglect children is repugnant to American tradition." [FN156] *221

4. Public policy scrutiny specific to the modern relevance of early American common law: criticism of the common law presumption of a common parent-child interest

One criticism of the original intent approach that could be advanced is that the resultant decisions are based on outdated principles. Some courts question whether the common law presumption of a common parent-child interest is sound policy today. [FN157]

In the realm of family law, the presumption "that children ordinarily will be best cared for by those bound to them by the ties of nature" [FN158] serves a similar function as the presumption of "innocent until proven guilty" in criminal law, or the property law presumption of rightful possession which the plaintiff must rebut with a stronger claim. [FN159] Without such basic presuppositions, an existing orderly and secure society cannot long maintain itself.

Some criticize the presumption that parents share in and act for the child's best interest and that parents possess "superior opportunities of knowing the physical and mental capabilities . . . of [their] child." [FN160] Few of these critics, however, also scrutinize the instances where the state agency's "temporary interest in a child's welfare" [FN161] is acted upon by the agency *222 in a manner that conflicts with or is indifferent to the child's best interest. [FN162] Bennett is a good example of a situation in which the purported state interest and the child's interest diverged.

In Bennett, the majority acknowledged that "home schooling attracts some of the most resourceful and dedicated of parents who are often in least need of regulation or supervision in carrying out one of the most fundamental responsibilities of family and state." [FN163] The majority also acknowledged that academic development for at least one Bennett child had clearly been served by leaving public school for home school. [FN164] Yet the Bennett majority and the school districts advocated restrictions on parental rights, even though such restrictions were of dubious relevance, [FN165] and, by the available evidence, actually detrimental to the children. *223

The majority quietly hinted at the Plymouth-Canton school district's true concern in a footnote: "[I]f there were no teacher certification requirements, considerable expense would be required for the state to examine and supervise a wide variety of facilities and individuals, widely scattered throughout the state, who might wish to instruct children at home." [FN166]

Indeed, Bennett, [FN167] DeJonge, [FN168] and several other similar state and federal cases in the state of Michigan, all provoked by a widespread assault on parental rights by the Michigan public education system in the 1980s, demonstrate that education officials were more concerned about channeling money and prestige to their own system by bolstering enrollment figures [FN169] than they were about the best interests of the children in question. [FN170]

The Bennett majority failed to consult Supreme Court language as to the administrative cost issue. In noting the conflict that can arise between government agency interests and the rights of an individual, the Supreme Court has explicitly rejected the idea that the state interest in minimizing costs will independently stand as a sufficient state interest justification for state actions: *224

Procedure by presumption is always cheaper and easier than individual determination. But when . . . the procedure forecloses the determinative issues of competence and care, when it explicitly disdains present realities in deference to past formalities, it needlessly risks running roughshod over the important interests of both parent and child. It therefore cannot stand. [FN171]


The Supreme Court thus concluded that states may not casually deprive individuals of their basic rights to realize "some remote administrative benefit to the State." [FN172] A presumption created for state convenience [FN173] that is in effect "definitely conclusive--incapable of being overcome by proof of the most *225 positive character" [FN174] is "repugnant to the Equal Protection Clause." [FN175]

The conflict of interest between state agency interests and children's interests is national in scope, and is present with a variety of state agencies. It is clear that state agency conflict-of-interest problems are nationwide, and not just confined to Michigan. [FN176] In other states such as California [FN177] and Oregon, [FN178] public schools have shaped their policy [FN179] toward *226 private and home schools to optimize state tax revenue by consolidating power. [FN180] The empire-building mentality and *227 the desire for state funds may induce some public schools to violate state and federal law by recruiting and enrolling illegal aliens, or by otherwise inflating reported enrollment in public schools. [FN181] Questions have also arisen as to the care afforded to children by other state agencies. [FN182] *228

When the organizational pecuniary interests of state agencies are factored into the policy scrutiny of the early American common law principles, the case for dismissing those principles as obsolete becomes considerably less clear-cut than some might expect.

5. The principles of early American common law respecting parental rights are clear and constitute sound policy today

Conflicts of interest within state agencies can lead government institutions to put organizational interests ahead of child and parental needs. [FN183] However, the court system, which *229 usually is positioned to render judgments unencumbered by such conflicts of interest, is not an adequate substitution for the check against institutional abuse that strong parental rights represent.

Many courts have heavy dockets; they cannot allocate the court time and resources needed to identify and meet the individual needs of children in a manner comparable to the service provided by even the marginally involved parent. Additionally, the lack of resources combined with a fear of being second-guessed compels most judges to passively capitulate to state agency demands. [FN184] Without procedural protections arising from the common law policy of deference to parental rights, parents and children with modest means are quite vulnerable to unnecessary and/or harmful state intervention. Until there is a public outcry, judges tend to tolerate questionable evidentiary, [FN185] due process, [FN186] and enforcement [FN187] practices [FN188] *233 against questionably large numbers of vulnerable people [FN189] *234 when state agencies assert that it is necessary to protect a child and prevent chilling their intervention.

To summarize, original intent analysis yields a policy of broad deference to parental rights. [FN190] As demonstrated above by cases concerning parental rights in the education context, there is ample reason for courts to scrutinize not only the interplay between the interest of parent and child, but also the interplay between state and child/parent interests.

Due to inherent organizational design, state agencies have powerful incentives to make managerial decisions for children that are not in the child's best interest. Courts are unlikely to consistently check this organizational bias, because the pressures associated with heavy dockets combined with the professional risk of being second-guessed eliminates much of the incentive for judges to fill such a role. Protections afforded by presumptions favoring parental decisions cannot be adequately replicated with substitutes. The original American approach towards parental rights is sound policy in our modern era. *235

E. Approach #3: Public Policy and the State's Compelling Interest

1. Nature of policy analysis

In evaluating a proposition on the existence and protection of an alleged fundamental right, one should consider the important question of whether it is "a good idea for courts to be engaged in that kind of business." [FN191] In other words, is there a certain interpretation of the Ninth Amendment that is by necessity a logistic implication of meaningfully effectuating other constitutional provisions within the context of modern society? [FN192]

To answer the question posited above, this Comment will first discuss the primary policy rationale justifying the less deferential rational basis standard of protection for parental rights: (1) there is a state interest in having citizens constructively educated, socialized, and raised; and (2) given the realities *236 of the modern world, the traditional, autonomous, nuclear family is an outdated social mechanism for ensuring that children's needs are met.

This Comment will also discuss two public policy reasons why strict scrutiny should be applied to protect parental rights as a fundamental right under the Ninth Amendment. The first policy consideration involves the role that deference to parents plays in protecting the state's interest in preserving social diversity and pluralism. Initially, the Comment examines the effect that treating the parental right to direct the upbringing of a child as nonfundamental has had in selected countries outside the United States. The Comment then shifts the focus to the manner in which lawmakers, law enforcement, and lower courts within the United States have historically performed in the absence of protections derived from a fundamental right. Special emphasis is placed on the treatment of subcultures that have historically been unpopular.

The second policy consideration relates to the fact that the state typically does not provide redress for parents or children who are victimized by erroneous judgments imposed upon them by government agencies. Although parents are held to a high standard of care in a variety of ways, state agencies and employees are shielded from liability associated with many types of negligent activity.

The Comment concludes that policy considerations weigh in favor of strong deference to the right of a parent to direct the upbringing of one's child. Furthermore, any reduction or modification of the parental right has such a profound effect on society that it should be done only after an affirmative decision made by the voice of the people as manifested through their elected legislative representatives.

2. Policy arguments justifying a rational basis standard of protection for parental rights

The Bennett majority argued that the state has an interest in having citizens constructively educated, socialized, and raised. [FN193] Implicitly, by depriving the parents of control over *237 their children's educations, the majority also decided that the traditional, autonomous, nuclear family is an outdated social mechanism for ensuring that the state's interest is satisfied as it pertains to the education, socialization, and upbringing of children. Rather than working to strengthen families where possible, therefore, the majority implied that the emphasis should be on establishing a replacement organization to handle various facets of childrens' needs.

Other courts have been more explicit in relying upon this policy rationale. A decision by the New Hampshire Supreme Court succinctly summarizes the argument:

This court has [previously] recognized that "[t]he family and the rights of the parents over it are . . . natural, essential, and inherent" . . . Because of their fundamental importance, great judicial deference has been accorded parental rights. They have been found to operate against the state, against third parties, and against the child. Parental autonomy is grounded in the assumption that natural parents raise their own children in nuclear families, consisting of a married couple and their children. The family has been seen as the "basic building block of society." Parental autonomy strengthens the family and the entire social fabric "by encouraging parents to raise their children in the best way they can by making them secure in the knowledge that neither the state nor outside individuals may ordinarily intervene." The realities of modern living, however, demonstrate that the validity of according almost absolute judicial deference to parental rights has become less compelling as the foundation *238 upon which they are premised, the traditional nuclear family, has eroded. . . .
One of the frequent consequences, for children, of the decline of the traditional nuclear family is the formation of close personal attachments between them and adults outside of their immediate families. . . . [O]ther caretakers often form close bonds and . . . become psychological parents . . . .
It would be shortsighted indeed, for this court not to recognize the realities and complexities of modern family life . . . . [FN194]


This rationale is used to justify unilateral judicial alteration of long- standing [FN195] social policies in favor of the family that continue to enjoy wide support from the general population. Because other sections of this Comment demonstrate the continued relevance of the family organization, [FN196] this issue will not be discussed here. *239

Rights pertaining to the family are embedded in the U.S. and state constitutions, as well as in statute and the common law. [FN197] A choice to legally shift from a family-based social structure to some organizational substitute, and to surrender the wide variety of rights accompanying a family structure to shift to an altered social order, is a decision of such tremendous magnitude that it should be affirmatively made by the voice of the people, as manifested by their elected legislative representatives.

3. Preservation of a democratic republic based on social diversity and pluralism

In Bennett, Justice Riley noted that sound public policy, in addition to legal, constitutional, and/or natural rights analysis, supported broad parental rights:

[N]ot only is family autonomy essential to the transmission of republican values, . . . it is a strong hedge against tyranny.
Monolithic control of the value transmission system is "a hallmark of totalitarianism," thus, "for obvious reasons, the state nursery is the paradigm for a totalitarian society." An essential element in maintaining a system of limited government is to deny state control over childrearing, simply because childrearing has such power. Even if the system remains democratic, massive state involvement with childrearing would invest the government "with the capacity to influence powerfully, through socialization, the future outcomes of democratic political processes." [FN198]


The Bennett majority did not, in any manner, address the public policy considerations raised by the dissent regarding plurality, diversity, or the preservation of democracy. [FN199] However, *240 these are important policy considerations that are commonly forwarded in support of strong parental rights; consequently, this Comment will accord them more detailed consideration.

Justice Riley is not the first to express concern about the role of parental rights in preserving intellecutal and cultural pluralism. The policy of strong parental rights inherent in early American common law [FN200] is consistent with the state interest in preserving societal pluralism, a state interest that the courts have consistently reaffirmed. Justice Oaks of the Utah Supreme Court explained:

Any invasion of the sanctity of the family, even with the loftiest motives, unavoidably threatens those [cherished] traditions and values. For example, family autonomy helps to assure the diversity characteristic of a free society. There is no surer way to preserve pluralism than to allow parents maximum latitude in rearing their own children. Much of the rich variety in American culture has been transmitted [FN201] . . . by determined *242 parents who were acting against the best interest of their children, as defined by official dogma. Conversely, there is no surer way to threaten pluralism than to terminate the rights of parents who contradict officially approved values imposed by reformers empowered to determine what is in the "best interest" of someone else's child. [FN202]


The United States Supreme Court appears to have adopted similar reasoning. In Meyer v. Nebraska, the Supreme Court noted:

For the welfare of his Ideal Commonwealth, Plato suggested a law [FN203] which should provide: *243


That the wives of our guardians are to be common, and their children are to be common, and no parent is to know his own child, nor any child his parent. . . . The proper officers will take the off-spring of the good parents to the pen or fold, and there they will deposit them with certain nurses who dwell in a separate quarter; but the offspring of the inferior, or of the better when they chance to be deformed, will be put away in some mysterious, unknown place, as they should be.


. . . Although such measures [to submerge the individual and develop ideal citizens] have been deliberately approved by men of great genius their ideas touching the relation between individual and state were wholly different from those upon which our institutions rest; and it hardly will be affirmed that any Legislature could impose such restrictions upon the people of a state without doing violence to both letter and spirit of the Constitution. [FN204]


After repudiating standardized state socialization for children, the Supreme Court overturned a restriction on the use of foreign languages in private schools. [FN205]

Within the context of Bennett, Michigan's teacher certification requirements were effectively utilized as a means of imposing state dogma on children, over the objections of their parents. [FN206] In a democratic society where pluralism and tolerance for diversity are still widely accepted values, the tactics approved by the Bennett court are inappropriate. *244

a. The totalitarian elimination of parental rights: an ideological alternative to the American common law approach. Events of the twentieth century have verified the wisdom of the Supreme Court in supporting broad parental rights, and show that "[t]he fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the state to standardize its children by forcing them to accept instruction from public teachers only." [FN207]

To understand the significance of the Pierce/Meyer doctrine it is helpful to examine as a reference the stance on parental rights evident in the actions and basic political treatises supporting the Ottoman Empire, [FN208] National Socialism, [FN209] *245 Japanese Imperialism, [FN210] Communism, [FN211] and Iraq's Arab *246 Ba'th Socialist Party, [FN212] all of which stand in marked contrast *247 to the parental rights policy adopted by the U.S. Supreme Court in Pierce. [FN213]

Although these totalitarian regimes are dissimilar in many other aspects, they all rely heavily on techniques of mass socialization to maintain control. Consequently, these regimes espouse a common syllogism respecting parental rights, especially pertaining to education: (1) youth are a special community deserving of specialized attention; (2) the state should therefore have absolute power to isolate children from their parents and to train children in state-approved dogma; (3) the state's *248 absolute power is to be maintained by strict control over the selection of curriculum, instructors, caretakers, and academic credentials; (4) therefore, to protect the youth, the state can and should override parental rights, even if such action would offend the American judicial goal of reflecting "'traditional notions of fair play and substantial justice"' [FN214] in the law. [FN215] *249

b. The alternative to parental rights used for historically unpopular American subcultures: United States campaigns of cultural genocide. The totalitarian four-step paradigm is not confined to the realm of theory, even within the United States. Various state or federal entities have used public education to forward various concerted, officially articulated campaigns [FN216] *250 that effectively assaulted and reshaped American ethnic, [FN217] racial, [FN218] and religious [FN219] subcultures. Though the United *254 States has not attacked unpopular subcultures to the extremes effectuated in other countries, the human rights implicated in each case and the means by which those rights are violated are similar. [FN220] Despite the wishful thinking of at least one court, [FN221] public school systems that eviscerate parental rights and family autonomy cannot simultaneously stand as a "bulwark against tyranny" or as a "vehicle for self-reliant citizens." [FN222] Democracy in the context of pluralism and diversity requires a self-reliance that can only be achieved when different groups of people are allowed to decide for themselves how to best meet their own unique needs in the context of their family's singular circumstances. *255

4. Options for redress of government agencies' errors in overriding parental decisions

The Bennett majority inferred that parents sending their children to public school could "demand their [tax] money's worth of quality for their children" and that public school parents would in fact be more likely than home educators to see that their children would receive a quality education, since home education does not have a direct relationship between tuition or taxes paid and the resultant education. [FN223]

The Bennett court erred with its "tax money" theory [FN224] by assuming that students who have no legal alternative to public education [FN225] can always gain adequate redress for their grievances within the public education system. To put it another way, the court implied that the possibility of parental participation *256 and influence in a "democratic" public education process somehow compensates for violating parental rights. [FN226]

Even a cursory examination of the Bennett's alternatives [FN227] after the Michigan Supreme Court decision show that the Bennetts were left without any significant control of their children's education. Compelled to accept public school services, the Bennetts were unlikely to be able to shape their children's public education experience significantly. The school board would likely view any Bennett proposals for change as idiosyncratic, despite the Bennetts' previous successes in educating their children. [FN228] Pursuing a lawsuit in an attempt to override *257 public school internal policies, based on theories related to parental desires, would be an equally unlikely avenue for relief. [FN229]

In the wake of Bennett, families like the Bennetts become not only helpless with regard to shaping their children's educational experience, [FN230] but are also left without a remedy if the public school acts incompetently in teaching their children and/or coordinating with the parents. [FN231] Freed from accountability *258 or checks on their power, government agencies simply move on to generation after generation of children, regardless of the damage suffered by often unwilling participants. Individual families with comparatively limited resources are often powerless to defend themselves against many of the wide range of actions that could possibly be leveled against them. [FN232]

5. Summary of public policy analysis

Even if one rejects natural law and original intent approaches of constitutional interpretation, the public policy considerations in support of a broad, fundamental constitutional right for a parent to direct the upbringing of a child are considerable.

The discussion of public policy considerations respecting parental rights in Part IV.E is not meant to be comprehensive. *259 It has, however, hopefully identified some of the major policy considerations implicated by parental rights.

Part IV.E of this Comment is intended to show that the Bennett majority erred when it refused to candidly consider the distinctions between the approach towards parental rights set forth in Meyer v. Nebraska, [FN233] and the totalitarian syllogism articulated in section IV.E.3.a of this Comment. The mistreatment of historically unpopular ethnic, racial, and religious cultures discussed in section IV.E.3.b betrays the dramatic difference that the two approaches have on the family lifestyles of those affected. As section IV.E.2 mentioned, courts should wait for an affirmative signal by the people via their elected legislative representatives before changing policies respecting the legal status of the family that have such a tremendous impact on the nature of society.

Part IV.E.4 of this Comment also raises the concerns in conjunction with the double standard of care for children imposed on the state when compared with parents. Parents have a very taxing legal duty to care for their children. State agencies and officers, however, are accorded immunity as to many actions relative to children because immunity is deemed necessary to make state agency activity possible. The unfortunate side effect is that the best result parents can hope for is to avoid being censured by the state. Children who are harmed by overt abuse or benign neglect resulting from state-imposed decisions are left without recourse. [FN234]

Had the Bennett majority properly considered these policy issues, it would have been more likely to apply strict scrutiny to state intervention. The family is still the popularly preferred social mechanism in this modern era for meeting the needs of individuals.


V. CONCLUSION

This Comment has examined the conclusion in Bennett, discussed in Part III, that there is no fundamental parental right to direct a child's education. If a parental right is not fundamental, strict scrutiny is not applied, and the state does *260 not assume the burden to prove that overriding parental wishes is necessary. [FN235]

Part II of this Comment noted the great deference to parental rights afforded by English and early American common law. The United States Supreme Court also has characterized parental rights in a way that appears to demand deference to parents as a matter of constitutional law. Although this deference often was not accorded equally to parents of historically unpopular subcultures, the general concept of a strong parental prerogative was generally unchallenged until the latter half of the twentieth century.

The clash between a subculture of alternative educators and state agencies has afforded the most recent opportunity to examine parental rights issues. Lower courts often overturned the deferential common law protection of an expansive parental right. However, higher courts and statutory reform are beginning to reverse the erosion of parental prerogative.

Part IV identified the reasons for the muddled state of parental rights jurisprudence. Rather than synthesizing semantic constructions from cases in an attempt to identify a consistency that does not exist, this Comment argued a teleological view of the Ninth Amendment. This Comment then clarified the effect of the three general approaches used by courts to interpret the constitution on the analysis of a parental right derived from the Ninth Amendment. Discussion included the relationships that exist between the three separate, but overlapping, approaches of natural law theory, original intent, and public policy state interest analysis.

Courts favoring strong deference to an expansive parental right often focus on natural law and/or original intent arguments, usually incorporating policy arguments as an after-thought. On the other hand, courts favoring weak deference to ill-defined parental rights typically bypass natural law and original intent entirely and focus instead on public policy justifications related to the state's interest in the well-being of children. Each facet of a child's upbringing is deemed to be a separate right, with different levels of deference accorded depending upon the judge's policy-based sentiments.

When courts work through the maze of arguments addressed in Part IV of this Comment, it is easy for them to forget *261 the larger perspective and get lost amid the detail involved in a particular case. Courts understand that natural law and original intent approaches almost always weigh heavily in favor of strong deference to an expansive parental right. Less widely understood, however, is the fact that sound public policy also weighs in favor of an expansive parental right.

As noted in Part IV.E, courts that erode the parental right to direct the upbringing of a child have generally overstated the strength of their public policy justifications. Often such courts deliver a skewed rationale that fails to acknowledge countervailing policy considerations. Although state, parent, and child have many interests that can superficially be characterized as countervailing, a careful analysis suggests the trio often share a common long- term interest in obtaining the same outcomes.

This Comment has noted with particular concern the issues that arise due to organizational incentives built by design into the bureaucratic system. The pecuniary and power motivations noted in Parts IV.D.4 and IV.E.3-4 suggest that heightened protection for parental rights is warranted because state agencies are not always organizationally inclined to act in the best interest of family members. A democracy based on pluralism, tolerance for diversity, and an information-based economy must necessarily be founded upon state deference to parents who are directing autonomous family units. Most interests that favor conflicting dispositions can be reconciled by thoughtfully analyzing (1) the nature of the rights asserted, and (2) the actual costs and benefits that available alternative resolutions represent relative to the asserted rights.

Natural law, original intent, and public policy approaches all lead to the same inevitable conclusion: substantial justification exists for recognizing a broad, fundamental parental right under the Ninth Amendment of the United States Constitution. As discussed in Part III.B.1, strict scrutiny is the appropriate level of protection for a fundamental constitutional right. The strict scrutiny test dictates that state intervention is proper only if (1) a state regulation can be justified by a compelling state interest, (2) the means chosen are essential to furthering that interest, (3) there is a clear and present danger to interests the state may lawfully protect, and (4) the state fulfills its *262 burden of showing that the tactic used is the least restrictive means of discharging its interest. [FN236]

This Comment urges an interpretation of the Ninth Amendment whereby parental rights, a basic civil right that is as precious as other rights specifically enumerated in the Bill of Rights, can receive more than the erratic and often diminished protection that courts such as the Michigan Supreme Court have accorded it in recent years. *263


APPENDIX A: TEXT OF THE BILL FOR THE PARENTAL RIGHTS AND RESPONSIBILITIES ACT OF 1995


The following is taken from S. 984, 104th Cong., 1st Sess. (1995), microformed on Sup. Docs. No. Y 1.4/1:104-1-182 (U.S. Gov't Printing Office). The Act is a sweeping proposal that gives the phrase "family values" a powerful new connotation. See also supra note 6. Because of its relevance to the issue of this Comment, and because of the dramatic impact it would have throughout the country, substantial text has been included below:
A BILL


To protect the fundamental right of a parent to direct the upbringing of a child, and for other purposes.
. . . .

SECTION 1. SHORT TITLE.

This Act may be cited as the "Parental Rights and Responsibilities Act of 1995".

SEC. 2. FINDINGS AND PURPOSES.

(a) FINDINGS.--Congress finds that--
(1) the Supreme Court has regarded the right of parents to direct the upbringing of their children as a fundamental right implicit in the concept of ordered liberty within the 14th amendment to the Constitution, as specified in Meyer v. Nebraska, 262 U.S. 390 (1923) and Pierce v. Society of Sisters, 268 U.S. 510 (1925);
(2) the role of parents in the raising and rearing of their children is of inestimable value and deserving of both praise and protection by all levels of government;
(3) the tradition of western civilization recognizes that parents have the responsibility to love, nurture, train, and protect their children;
(4) some decisions of Federal and State courts have treated the right of parents not as a fundamental right but as a nonfundamental right, resulting in an improper standard of judicial review being applied to government conduct that adversely affects parental rights and prerogatives;
(5) parents face increasing intrusions into their legitimate decisions and prerogatives by government agencies in situations that do not involve traditional understandings of abuse or neglect but simply are a conflict of parenting philosophies; *264
(6) governments should not interfere in the decisions and actions of parents without compelling justification; and (7) the traditional 4-step process used by courts to evaluate cases concerning the right of parents described in paragraph (1) appropriately balances the interests of parents, children, and government.

(b) PURPOSES.--The purposes of this Act are--
(1) to protect the right of parents to direct the upbringing of their children as a fundamental right;
(2) to protect children from abuse and neglect as the terms have been traditionally defined and applied in State law, such protection being a compelling government interest;
(3) while protecting the rights of parents, to acknowledge that the rights involve responsibilities and specifically that parents have the responsibility to see that their children are educated, for the purposes of literacy and self-sufficiency, as specified by the Supreme Court in Wisconsin v. Yoder, 406 U.S. 205 (1972);
(4) to preserve the common law tradition that allows parental choices to prevail in a health care decision for a child unless, by neglect or refusal, the parental decision will result in danger to the life of the child or result in serious physical injury to the child; (5) to fix a standard of judicial review for parental rights, leaving to the courts the application of the rights in particular cases based on the facts of the cases and law as applied to the facts; and
(6) to reestablish a 4-step process to evaluate cases concerning the right of parents described in paragraph (1) that--
(A) requires a parent to initially demonstrate that--
(i) the action in question arises from the right of the parent to direct the upbringing of a child; and
(ii) a government has interfered with or usurped the right; and
(B) shifts the burdens of production and persuasion to the government to demonstrate that--
(i) the interference or usurpation is essential to accomplish a compelling governmental interest; and
(ii) the method of intervention or usurpation used by the government is the least restrictive means of accomplishing the compelling interest.

SEC. 3. DEFINITIONS.

As used in this Act: *265

(1) APPROPRIATE EVIDENCE.--The term "appropriate evidence" means--
(A) for a case in which a government seeks a temporary or preliminary action or order, except a case in which the government seeks to terminate parental custody or visitation, evidence that demonstrates probable cause; and
(B) for a case in which a government seeks a final action or order, or in which the government seeks to terminate parental custody or visitation, clear and convincing evidence.
. . . .

(4) RIGHT OF A PARENT TO DIRECT THE UPBRINGING OF A CHILD.--

(A) IN GENERAL.--The term "right of a parent to direct the upbringing of a child" includes, but is not limited to a right of a parent regarding--
(i) directing or providing for the education of the child;
(ii) making a health care decision for the child . . . ;
(iii) disciplining the child, including reasonable corporal discipline [but not "abuse or neglect of a child, as the terms have traditionally been defined and applied in State law"]; and
(iv) directing or providing for the religious teaching of the child.
. . . .

SEC. 4. PROHIBITION ON INTERFERING WITH OR USURPING RIGHTS OF PARENTS.

No Federal, State, or local government, or any official of such a government acting under color of law, shall interfere with or usurp the right of a parent to direct the upbringing of the child of the parent.

SEC. 5. STRICT SCRUTINY.

SEC. 6. CLAIM OR DEFENSE.

Any parent may raise a violation of this Act in an action in a Federal or State court, or before an administrative tribunal, of appropriate jurisdiction as a claim or a defense. *266

SEC. 7. DOMESTIC RELATIONS CASES AND DISPUTES BETWEEN PARENTS.

This Act shall not apply to--

(1) domestic relations cases concerning the appointment of parental rights between parents in custody disputes; or
(2) any other dispute between parents.

SEC. 8. ATTORNEY'S FEES.

Subsections (b) and (c) of section 722 of the Revised Statutes (42 U.S.C. 1988 (b) and (c)) (concerning the award of attorney's and expert fees) shall apply to cases brought or defended under this Act. A person who uses this Act to defend against a suit by a government described in section 4 shall be construed to be the plaintiff for the purposes of the application of such subsections. *267


APPENDIX B: DEALING WITH DIVERSITY


U.S. Department of Education policy analyst Patricia M. Lines, who is also an attorney, wrote a lengthy article to help public educators cope with diversity in educational orientation. The full article in Patricia M. Lines, An Overview of Home Instruction, [FN237] provides statistical data, in depth legal analysis, and other information that is worth examining in full. Ms. Lines' advice included the ten concepts excerpted below:

[1] Once the mainstay of education on the American frontier, home instruction is now regarded as not quite legitimate by some educators. Most often, though, these critics do not have a good general picture of home- schooling. Some may be basing their views on sketchy information or on one or two worst cases involving poor programs or even child abuse. [FN238]

[2] Public educators and home-schoolers can end the hostility that too often characterizes their relationship. [FN239]

[3] The world of home-schooling today . . . is vigorous and diverse. Home-schoolers appear to share at least one thing: the firm belief that parents can and should be deeply involved in the education of their own children. Otherwise, reasons for undertaking home-schooling are as varied as the [diverse] families and children involved. [FN240]

[4] [S]ome parents--many of them former teachers--think through their methods very carefully to meet the individual needs of their children. Others have less [formal] training, but they usually make an effort to discover the appropriate pedagogical approach for their children, sometimes consulting teachers, experts, or materials on child development and learning. . . .
. . . .
Some organizations, such as the Clonlara School, in Ann Arbor, Michigan, and the Learning at Home, in Honaunau, Hawaii, help parents develop an individualized *268 curriculum using materials they develop, as well as texts and workbooks from commercial publishers. The Hewitt-Moore Child Development Center and the Evangelistic & Faith Enterprises of America both provide special assistance to families with learning-disabled children. [FN241]

[5] [T]esting data suggest that successes are more numerous than failures in home-schools [in Alaska, Los Angeles, and Washington state]. . . . [P]arental education from the survey of parents indicates that [they] were not an elite group.
. . . .
The [existing] evidence for the social development of home-schooled children [e.g. the Piers-Harris Children's Self-Concept Scale]. . . . suggests superior development. . . .
. . . There is evidence that most home-schooled children engage in frequent group and community activity. [FN242]

[6] Many legal scholars now believe that the family's interest should prevail and that the state's interest can be met in other ways. The American Civil Liberties Union summarizes its policy on this matter:

[I]n the interest of parental right to choose an alternative to public education . . . the state's interest in assuring minimum levels of education does not extend to control of the means by which that interest is realized. [FN243]

[7] Anxious educators may wish to prescribe specific texts for children in home-schools or require submission of texts for approval, but either practice would raise serious questions about violation of the free speech rights of the individual involved.
. . . Regulating the content of private educational materials is simply too intrusive under the free speech clause of the First Amendment.
. . . . *269
. . . It seems unlikely that the state's interest in the education of any child is so compelling that it would justify a state-prescribed view of history, social studies, or the world. Prescribing or censoring textbooks would be a particularly ironic way to preserve democratic ideals. [FN244]

[8] [I]t is not clear that states can show sufficient justification for requiring teachers to be certified. Nor is it likely that states could require both testing of the children and the teacher as criteria for acceptance of the program. (Public schools, after all, are not shut down if the children or the teachers fail to test above a minimum level.) [FN245]

[9] [H]ome-schoolers sometimes see public educators as . . . opportunists, interested in their children only for the sake of the federal and state dollars they represent. . . . [or] as . . . seeking to mold other people's children . . . .
[S]ome public educators seem to feel that openly public schools can achieve the public's goals for education. They find home-schoolers even more subversive than private schools . . . they dismiss evidence of above-average academic achievement . . . . Some public educators cite isolated cases of child abuse, apparently assuming that these are typical of home-schooling and could be prevented by requiring all children to attend a [sanctioned] public or private school. [Better information] should help resolve the objections of these educators. . . . [FN246]

[10] Much could be gained by building cooperative relationships . . . .
. . . .
The greater burden of building bridges should fall on public officials, because they are the professionals in the partnership. When large numbers of home-schooling families appear hostile, public educators might [seek neutral intermediaries]. . . .
. . . .
Ideally, public educators and home-schoolers can make a peace that permits cooperation on the real business *270 at hand--educating children. . . . [O]pen such school facilities as laboratories, libraries, athletic facilities . . . . [A]dmit home-schooled children to such classes as band . . . .
. . . .
. . . . The result will probably be children who are educated to be different. But such differences can ultimately stimulate the intellectual development of the nation. [FN247] *271



APPENDIX C: LIST OF PRINCIPAL SOURCES



1. Cases

1.1 Adamson v. California, 332 U.S. 46 (1947).

1.2 Alsager v. District Court, 406 F. Supp. 10 (S.D. Iowa 1975), opinion adopted by 545 F.2d 1137 (8th Cir. 1976).

1.3 Anguis v. Superior Court, 429 P.2d 702 (Ariz. Ct. App. 1967).

1.4 Arizona State Dep't of Pub. Welfare v. Barlow, 296 P.2d 298 (Ariz. 1956).

1.5 Baltimore & Carolina Line v. Redman, 295 U.S. 654 (1935).

1.6 Bartels v. Iowa, 262 U.S. 404 (1923).

1.7 Bellotti v. Baird, 443 U.S. 622 (1979).

1.8 Black Panther Party v. Smith, 661 F.2d 1243 (D.C. Cir. 1981), vacated on unspecified grounds 458 U.S. 1118 (1982).

1.9 Blackwelder v. Safnauer, 689 F. Supp. 106 (N.D.N.Y. 1988).

1.10 Brooks v. Parkerson, 454 S.E.2d 769 (1995), cert. denied, 116 S. Ct. 377 (1995).

1.11 Bryant v. Brown, 118 So. 184 (Miss. 1928).

1.12 Calder v. Bull, 3 U.S. 386 (1798).

1.13 Campbell v. Gerrans, 592 F.2d 1054 (9th Cir. 1979).

1.14 Capital Traction Co. v. Hof, 174 U.S. 1 (1899).

1.15 Clonlara, Inc. v. Runkel, 722 F. Supp. 1442 (E.D. Mich. 1989).

1.16 Clonlara, Inc. v. State Bd. of Educ., 501 N.W.2d 88 (Mich. 1993).

1.17 Commonwealth ex rel. Sch. Dist. of Pittsburgh v. Ross, 330 A.2d 290 (Pa. Commw. Ct. 1975).

1.18 Concerned Citizens for Neighborhood Sch., Inc. v. Board of Educ., 379 F. Supp. 1233 (E.D. Tenn. 1974).

1.19 Cornwell v. State Bd. of Educ., 428 F.2d 471 (4th Cir. 1970).

1.20 Daubert v. Merrell Dow Pharmaceuticals, Inc., 113 S. Ct. 2786 (1993).

1.21 Davis v. Jurney, 145 A.2d 846 (D.C. 1958).

1.22 Dickson v. Lascaris, 423 N.E.2d 361 (N.Y. 1981).

1.23 Dimick v. Schiedt, 293 U.S. 474 (1935).

1.24 Employment Div., Dep't of Human Resources v. Smith, 494 U.S. 872 (1990).

1.25 Griswold v. Connecticut, 381 U.S. 479 (1965).

1.26 Hanson v. Cushman, 490 F. Supp. 109 (W.D. Mich. 1980).

1.27 Hatch v. Goerke, 502 F.2d 1189 (10th Cir. 1974).

1.28 In re Appeal in Maricopa County, Juv. Action No. J-75482, 536 P.2d 197 (Ariz. 1975) (en banc). *272

1.29 In re Baum, 382 N.Y.S.2d 672 (N.Y. Fam. Ct. 1976), aff'd 401 N.Y.S.2d 514 (N.Y. App. Div. 1978), appeal denied 407 N.Y.S.2d 106 (1978).

1.30 In re Charles, 504 N.E.2d 592 (Mass. 1987).

1.31 In re Foster, 330 N.Y.S.2d 8 (N.Y. Fam. Ct. 1972).

1.32 In re J.P., 648 P.2d 1364 (Utah 1982).

1.33 In re McMillan, 226 S.E.2d 693 (N.C. Ct. App. 1976).

1.34 In re Monning, 638 S.W.2d 782 (Mo. Ct. App. 1982).

1.35 In re Perales, 369 N.E.2d 1047 (Ohio 1977).

1.36 In re Valenti, 224 Cal. Rptr. 10 (Cal. Ct. App. 1986).

1.37 International Shoe v. Washington, 326 U.S. 310 (1945).

1.38 J.B. & L.B. v. Washington County, 905 F. Supp. 979 (D. Utah 1995), appeal docketed, No. 93-CV-1038 (10th Cir. 1996).

1.39 Jernigan v. State, 412 So. 2d 1242 (Ala. Crim. App. 1982).

1.40 Lockwood v. Nims, 98 N.W.2d 753 (Mich. 1959).

1.41 McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548 (1984).

1.42 Meyer v. Nebraska, 262 U.S. 390 (1923).

1.43 Michigan Dep't of Social Servs. v. Emmanuel Baptist Preschool, 455 N.W.2d 1 (Mich. 1990).

1.44 Moore v. City Of East Cleveland, 431 U.S. 494 (1977).

1.45 Murphy v. Arkansas, 852 F.2d 1039 (8th Cir. 1988).

1.46 National Acceptance Co. of America v. Bathalter, 705 F.2d 924 (7th Cir. 1983).

1.47 National Soc'y of Professional Eng'rs v. United States, 435 U.S. 679 (1978).

1.48 Nielson v. Nielson, 818 P.2d 1043 (Utah Ct. App. 1991).

1.49 Novoa v. County of Ventura, 183 Cal. Rptr. 736 (Ct. App. 1982).

1.50 Parham v. J.R., 442 U.S. 584 (1979).

1.51 People v. Anonymous, 179 N.E.2d 200 (N.Y. 1961).

1.52 People v. Bennett, 501 N.W.2d 106 (Mich. 1993).

1.53 People v. DeJonge, 501 N.W.2d 127 (Mich. 1993).

1.54 People ex rel. Portnoy v. Strasser, 104 N.E.2d 895 (N.Y. 1952).

1.55 People v. Turner, 263 P.2d 685 (Cal. App. Dep't Super. Ct. 1953).

1.56 Peter W. v. San Francisco Unified Sch. Dist., 131 Cal. Rptr. 854 (Cal. Ct. App. 1976).

1.57 Pierce v. Society of the Sisters, 268 U.S. 510 (1925).

1.58 Prince v. Massachusetts, 321 U.S. 158 (1944).

1.59 Quilloin v. Walcott, 434 U.S. 246 (1978).

1.60 Roberts v. Ward, 493 A.2d 478 (N.H. 1985).

1.61 Roe v. Conn, 417 F. Supp. 769 (M.D. Ala. 1976).

1.62 Runyon v. McCary, 427 U.S. 160 (1976). *273

1.63 School Bd. Dist. No. 18 v. Thompson, 103 P. 578 (Okla. 1909).

1.64 Scoma v. Chicago Bd. of Educ., 391 F. Supp. 452 (N.D. Ill. 1974).

1.65 Sheridan Rd. Baptist Church v. Department of Educ., 396 N.W.2d 373 (Mich. 1986), cert. denied 481 U.S. 1050 (1987).

1.66 Simmons v. United States, 390 U.S. 377 (1968).

1.67 Stanley v. Illinois, 405 U.S. 645 (1972).

1.68 State v. Bowman, 653 P.2d 254 (Or. Ct. App. 1982).

1.69 State v. Edgington, 663 P.2d 374 (N.M. Ct. App. 1983).

1.70 State v. Lowry, 383 P.2d 962 (Kan. 1963).

1.71 State v. M.M., 407 So. 2d 987 (Fla. Dist. Ct. App. 1981).

1.72 State v. Newstrom, 371 N.W.2d 525 (Minn. 1985).

1.73 State v. Superior Court, 346 P.2d 999 (Wash. 1959) (en banc).

1.74 State v. Whisner, 351 N.E.2d 750 (Ohio 1976).

1.75 Wells v. Children's Aid Soc'y of Utah, 681 P.2d 199 (Utah 1984).

1.76 Wisconsin v. Yoder, 406 U.S. 205 (1972). *274


2. Statutes and Constitutional Provisions

2.1 THE DECLARATION OF INDEPENDENCE (U.S. 1776).

2.2 Nomination of Robert Bork to be an Associate Justice of the Supreme Court of the United States: Hearings Before the Committe on the Judiciary, 100th Cong., 1st Sess. 249 (1987).

2.3 S. 984, 104th Cong., 1st Sess. (1995), microformed on Sup. Docs. No. Y 1.4/1:104-1-182 (U.S. Gov't Printing Office).

2.4 U.S. CONST. art. I., 9, cl. 1.

2.5 U.S. CONST. art. I, 10, cl. 3.

2.6 U.S. CONST. art. IV, 2, cl. 3.

2.7 U.S. CONST. amend. I.

2.8 U.S. CONST. amend. III.

2.9 U.S. CONST. amend. V.

2.10 U.S. CONST. amend. VII.

2.11 U.S. CONST. amend. IX.

2.12 U.S. CONST. amend. XIII 1.

2.13 U.S. CONST. amend. XIV, 1.

2.14 Utah Enabling Act, ch. 138, 3, 6, 9-11, 28 Stat. 107 (1894). *275


3. Legal Periodicals

3.1 Akhil Reed Amar, The Bill of Rights and the Fourteenth Amendment, YALE L.J. 1193 (1992).

3.2 Akhil Reed Amar, The Original Meaning of the Fourteenth Amendment: Did the Fourteenth Amendment Incorporate the Bill of Rights Against the States?, 19 HARV. J.L. & PUB. POL'Y 443 (1996).

3.3 Raoul Berger, Suzanna and--the Ninth Amendment, 1994 B.Y.U. L. REV. 51.

3.4 Boris I. Bittker, Interpreting the Constitution: Is the Intent of the Framers Controlling? If Not, What Is? 19 HARV. J.L. & PUB. POL'Y 9 (1995).

3.5 Donald D. Dorman, Note, Michigan's Teacher Certification Requirement as Applied to Religiously Motivated Home Schools, 23 U. MICH. J.L. REF. 733 (1990).

3.6 James G. Dwyer, Parent's Religion and Children's Welfare: Debunking the Doctrine of Parents' Rights, 82 CAL. L. REV. 1371 (1994).

3.7 James C. Harrington, Taking Liberties: Racism Lingers in Texas Courts: The Judge Who Accused a Woman of Child Abuse for Speaking Spanish to Her Daughter Should Apologize and Then Resign from the Bench, 11 TEX. LAW., Sept. 11, 1995.

3.8 Alma C. Henderson, Comment, The Home Schooling Movement: Parents Take Control of Educating Their Children, 1991 ANN. SURV. AM. L. 985 (1992).

3.9 Ralph D. Mawdsley, Annotation, Parental Rights and Public Education, 59 EDUC. L. REP. (West) 271 (1990).

3.10 Thomas B. McAffee, The Original Meaning of the Ninth Amendment, 90 COLUM. L. REV. 1215 (1990).

3.11 Mark Murphy, Note, A Constitutional Analysis of Compulsory School Attendance Laws in the Southeast: Do They Unlawfully Interfere with Alternatives to Public Education? 8 GA. ST. U. L. REV. 457 (1992).

3.12 Edward Knox Proctor V, Note, Delconte v. State: Some Thoughts on Home Education, 64 N.C. L. REV. 1302 (1986).

3.13 Julie S. Rappaport, Note, The Legal System's Response to Child Abuse: A "Shield" for Children or a "Sword" Against the Constitutional Rights of Parents?, 9 N.Y.L. SCH. J. HUM. RTS. 257 (1991).

3.14 Suzanna Sherry, The Ninth Amendment: Righting an Unwritten Constitution, 64 CHI.-KENT L. REV. 1001 (1988).

3.15 Brendan Stocklin-Enright, The Constitutionality of Home Education: The Role of the Parent, the State, and the Child, 18 WILLAMETTE L. REV. 563 (1982). *276


4. Books

4.1 AMERICAN PSYCHIATRIC ASSOCIATION, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (4th ed. 1994).

4.2 BLACK'S LAW DICTIONARY (6th ed. 1990).

4.3 CENTURY EDITION OF THE AMERICAN DIGEST (1897-1904).

4.4 THE OXFORD ENGLISH DICTIONARY (2d ed. 1989).

4.5 LEONARD J. ARRINGTON & DAVIS BITTON, THE MORMON EXPERIENCE: A HISTORY OF THE LATTER-DAY SAINTS (1980).

4.6 KAREN BARKLEY, BANDITS AND BUREAUCRATS: THE OTTOMAN ROUTE TO STATE CENTRALIZATION (1994).

4.7 JOHN BARTLETT, FAMILIAR QUOTATIONS 573 (Emily M. Beck et al. eds., 15th ed. 1980).

4.8 THE BOOK OF MORMON: ANOTHER TESTAMENT OF JESUS CHRIST, Mosiah 23:13-14.

4.9 ROBERT BORK, THE TEMPTING OF AMERICA: THE POLITICAL SEDUCTION OF THE LAW (1990).

4.10 HARRY BRAVERMAN, LABOR AND MONOPOLY CAPITAL: THE DEGRADATION OF WORK IN THE TWENTIETH CENTURY (1974).

4.11 COMMITTEE AGAINST REPRESSION AND FOR DEMOCRATIC RIGHTS IN IRAQ, SADDAM'S IRAQ: REVOLUTION OR REACTION? (1986).

4.12 Deuteronomy 11:19 (King James).

4.13 THE DOCTRINE & COVENANTS OF THE CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS 88:118.

4.14 FRIEDREICH ENGLES, PRINCIPLES OF COMMUNISM (Paul M. Sweezy trans., Modern Readers Paperback 1968) (1952).

4.15 Discourse by President Joseph F. Smith (Oct. 3, 1915), in 86TH SEMI- ANNUAL CONFERENCE REPORT 1 (1915).

4.16 Discourse by Elder John Taylor (May 18, 1862), in 10 JOURNAL OF DISCOURSES 49 (1967).

4.17 Discourse by President John Taylor (Dec. 8, 1878), in 20 JOURNAL OF DISCOURSES 102 (1967).

4.18 Discourse by President John Taylor (Apr. 8, 1879), in 20 JOURNAL OF DISCOURSES 174 (1967).

4.19 Discourse by President Brigham Young (Apr. 6, 1877), in 18 JOURNAL OF DISCOURSES 353, 357 (1967).

4.20 ADOLPH HITLER, MEIN KAMPF (Ralph Manheim trans., Houghton Mifflin Co. 1971) (1925).

4.21 SADDAM HUSSEIN, SOCIAL AND FOREIGN AFFAIRS IN IRAQ (Khalid Kishtainy trans. 1979) (1976).

4.22 DAVID H. HYMAN, ECONOMICS 14 (2d. Instructor's Ed. 1992).

4.23 JOHN KAPLAN & ROBERT WEISBERG, CRIMINAL LAW: CASES AND MATERIALS (2nd Ed. 1991).

4.24 EFRAIM KARSH & INARI RAUTSI, SADDAM HUSSEIN: A POLITICAL BIOGRAPHY (1991).*277

4.25 WILMA KING, STOLEN CHILDHOOD: SLAVE YOUTH IN NINETEENTH-CENTURY AMERICA (1995).

4.26 LORD KINROSS, THE OTTOMAN CENTURIES: THE RISE AND FALL OF THE TURKISH EMPIRE (1977).

4.27 M. FUAD KOPRULU, THE ORIGINS OF THE OTTOMAN EMPIRE (Gary Leiser ed. & trans. 1992).

4.28 S.S. LAURIE, HISTORICAL SURVEY OF PRE-CHRISTIAN EDUCATION (2nd. Ed. 1900).

4.29 GEORGE P. LEE, SILENT COURAGE: AN INDIAN STORY: THE AUTOBIOGRAPHY OF GEORGE P. LEE A NAVAJO (1987).

4.30 REX E. LEE, A LAWYER LOOKS AT THE CONSTITUTION (1981).

4.31 Malachi 4:5-6 (King James).

4.32 KARL MARX & FRIEDREICH ENGLES, THE COMMUNIST MANIFESTO (Paul M. Sweezy trans., Modern Readers Paperback 1968) (1933).

4.33 MILTON W. MEYER, JAPAN: A CONCISE HISTORY (3d ed. 1992).

4.34 JOHN E. NOWAK & RONALD D. ROTUNDA, CONSTITUTIONAL LAW (4th ed. 1991).

4.35 MURRAY ROCKOWITZ, ET AL., HOW TO PREPARE FOR THE GED HIGH SCHOOL EQUIVALENCY EXAMINATION (9th ed. 1995).

4.36 Proverbs 1:8 (King James).

4.37 JOHN B. TOEWS, CZARS, SOVIETS & MENNONITES (1982).

4.38 OLIVER E. WILLIAMSON, THE ECONOMIC INSTITUTIONS OF CAPITALISM (1985). *278


5. Other

5.1 A Mormon Tramp, SALT LAKE TRIB., Jan 23, 1877, at 2.

5.2 Personal Glimpses: To His Own Beat, READER'S DIG., Nov. 1990, at 19.

5.3 Preacher, Wife Acquitted In Child Sex-Abuse Case, USA TODAY, Dec. 12, 1995, at A3.

5.4 Teachers Refusing to Write Letters, DAILY HERALD (Provo, Utah), Oct. 15, 1995, at A10.

5.5 That's Outrageous: It Doesn't Add Up, READER'S DIG., July 1991, at 72.

5.6 The Exodus, U.S. NEWS & WORLD REP., Dec. 9, 1991, at 66.

5.7 Casey Banas, More Parents Teaching Children Themselves, CHI. TRIB., May 29, 1989, 1, at 8.

5.8 Fred Barnes, National Capital, National Shame, READER'S DIG., Nov. 1989 at 106.

5.9 K.L. Billingsley, Sex, Lies, and County Government: Abuse Case Shows It All, SAN DIEGO UNION TRIB., July 19, 1992, at C4.

5.10 Carroll Bogert, Leaving Them to Starve, TIME, Jan. 15, 1996, at 42.

5.11 Margaret Carlson, The Sex-Crime Capital, TIME, Nov. 13, 1995, at 89.

5.12 Deirdre M. Childress, Who Controls Emily's Education? Maryland Mother Battles Officials Over Rules On Home Schooling, WASH. POST, Nov. 25, 1995, at F1.

5.13 Megan Christofferson, Enrollment Increasing in Utah Private Schools, DAILY UNIVERSE (Brigham Young University), Feb. 21, 1996, at 1.

5.14 Anthony Cook, When Your Home is the Classroom, MONEY, Sept. 1991, at 104.

5.15 Conna Craig, 'John' Puts Face On Problems With Adoption In U.S., DAILY HERALD (Provo, Utah), Nov. 19, 1995, at G11.

5.16 Conna Craig, What I Need Is A Mom, READER'S DIG., Nov. 1995, at 122.

5.17 Lee Davidson, Hatch Sees Hypocrisy in Stalling City Kid's Aid, DESERET NEWS (Salt Lake City, Utah), May 7, 1992, at B14.

5.18 Jonathan Freedman, Foster Child: A Generation of Neglect, A Legacy of Loss, L.A. TIMES, Apr. 9, 1990 at B5.

5.19 John Gatto, An Award-Winning Teacher Speaks Out, UTNE READER, Sept. 1990, at 73.

5.20 John Gatto, Why Schools Don't Educate, THE SUN, Jun. 1990, at 24. *279

5.21 Tim Giago (Nanwica Kciji), Back To School Meant Exile for Native Americans, DAILY HERALD (Provo, Utah), Aug. 31, 1995, at B4.

5.22 Lino A. Graglia & Harry Jaffa, A Debate: God and Man in Court, NAT'L REV., Aug. 14, 1995, at 27.

5.23 Hilary Groutage, Small School Districts Fear Proposal, SALT LAKE TRIB., Feb. 20, 1996, at A4.

5.24 Dana Hawkins, Homeschool Battles: Clashes Grow as Some in the Movement Seek Access to Public Schools, U.S. NEWS & WORLD REP., Feb. 12, 1996, at 57.

5.25 Margot Hornblower, Fixing the System, TIME, Dec. 11, 1995, at 44.

5.26 Alice K. Johnson, et al., Foster Care and Adoption Policy in Romania: Suggestions for International Intervention, 72 CHILD WELFARE 489 (1993).

5.27 Jonathan Kaufman, Grade Inflation: Suburban Parents Shun Many Public Schools, Even the Good Ones: Eager to Give Their Children Any Edge, They Scrimp to Pay Pricey Tuitions: Angst, Guilt at $15,000 a Year, WALL ST. J. (Western ed.), Mar. 1, 1996, at A1.

5.28 J. Gary Knowles, Parent's Rationales for Operating Home Schools, J. CONTEMP. ETHNOGRAPHY, Jul. 1991, at 203.

5.29 Patricia M. Lines, An Overview of Home Instruction, PHI DELTA KAPPAN, Mar. 1987, at 510.

5.30 Donald W. Meyers, Charter School Tabled: Extremist Groups Would Benefit, Educators Warn, DAILY HERALD (Provo, Utah), Feb. 8, 1996, at A7.

5.31 Haya El Nasser, Hispanics Seek A Larger Role, USA TODAY, Mar. 2, 1992, at A3.

5.32 Lynn Olson, Eliminate Tracking System, Boston Schools Urged, EDUC. WK., Mar. 28, 1990, at 5.

5.33 Patrick Rogers & Karen Roebuck, Tongue Lashing: A Texas Judge's English- Only Order Ignites a Bilingual War of Words, PEOPLE, Sept. 25, 1995 at 111.

5.34 Edgar H. Schein, Organizational Socialization and the Profession of Management, 9 SLOAN MGMT. REV. 1 (1968).

5.35 Michael S. Shepherd, Home Schooling: Dimensions of Controversy, 1970-1984, J. CHURCH & ST., Winter 1989, at 101.

5.36 Jill Smolowe, Making the Tough Calls, TIME, Dec. 11, 1995, at 40.

5.37 John Speer, Home Education Thriving Among Utah County Families, DAILY HERALD (Provo, Utah), Feb. 6, 1981, at 4.

5.38 Deidre Sullivan, Going to School by Staying at Home, THE AMERICAN LEGION, Sept. 1993, at 25.

5.39 Thomas Toch et. al., Why Teachers Don't Teach, U.S. NEWS & WORLD REP., Feb. 26, 1996, at 62. *280

5.40 David Van Biema, Abandoned to Her Fate, TIME, Dec. 11, 1995, at 32.

5.41 David Van Biema, The Tide Turns In Wenetchee: But Will Justice Prevail?, TIME, Dec. 25, 1995, at 136.

5.42 Mark Walsh, D.C. School-Funding Request Cut Amid Enrollment Flap, EDUC. WK., Mar. 28, 1990, at 5.

5.43 Mark Walsh, Oregon Board Mulls New Regulations Concerning Private and Home Schools, EDUC. WK., Nov. 4, 1990, at 25.

5.44 Tom Wells, Home Schoolers Doing Well Despite Conflicts, DAILY HERALD (Provo, Utah), Dec. 3, 1995, at D1.

5.45 Joel Williams, Alteration of Language Order Hailed, SAN ANTONIO EXPRESS- NEWS, Sept. 17, 1995, 1B.


FOOTNOTES


[FNa]. In addition to the staff members of B.Y.U. Law Review and the law school faculty who reviewed this piece, the author would like to thank the following for the invaluable proofreading, logistical assistance, scholarly suggestions, critiques, legislative and scholarly source materials, and technical expertise required for the preparation of this Comment: Larry M. Arnoldsen, EdD., Assistant Professor in the Department of Secondary Education, College of Education, Brigham Young University; Alyson Draper, M.B.A./J.D. 1996, Instructor in Real Estate Finance at the Marriott School of Management, Brigham Young University; Paul C. Godfrey, PhD., Assistant Professor of Strategic Management at the Marriott School of Management, Brigham Young University; Matt Hilton, J.D., practicing civil rights attorney; Christopher B. Meek, PhD., Associate Professor of Cross-Cultural Analysis in Organizational Behavior in the Master of Organizational Behavior and International Studies programs at the Marriott School of Management and Kennedy Center for International Studies, Brigham Young University; Office of Senator Robert Bennett; Gloria E. Wheeler, PhD., Associate Professor of Statistics in the Master of Public Administration program at the Marriott School of Management, Brigham Young University; William R. Witte, collector of books related to the history and doctrine of the Church of Jesus Christ of Latter-day Saints; Mary L. Witte, Dinah Witte, and Louise R. Williamson for assisting in the management, photocopying, proof-reading, and storage of some of the thousands of documents reviewed in research related to this Comment. Although many members of the B.Y.U. Law Review made essential contributions, three are deserving of special gratitude for the extraordinary logistical advice and moral support they provided during the difficult portions of this project: Executive Editor Erik G. Davis, Managing Editor J. Anthony Jarett, and Note & Comment Selection Editor Douglas C. Waddoups. Although many have provided invaluable assistance, the author accepts sole scholarly responsibility for the material substance of all opinions, representations, analysis, and conclusions contained within this Comment.

[FN1]. 501 N.W.2d 106 (Mich. 1993).

[FN2]. The definition of the nature of a fundamental right is admittedly elusive, but such rights are generally those which have "a value so essential to individual liberty [in the United States] that they justify the [judicial system in] reviewing the acts of other branches of government [with strict scutiny]." JOHN E. NOWAK & RONALD D. ROTUNDA, CONSTITUTIONAL LAW 388 (4th ed. 1991).

[FN3]. This is not to be confused with parental rights derived from elsewhere in the Constitution. See, e.g., Alsager v. District Court, 406 F. Supp. 10, 16 (S.D. Iowa 1975), opinion adopted by 545 F.2d 1137 (8th Cir. 1976) (finding that parents have a fundamental right to rear children free from undue state interference, derived both from the Fourteenth Amendment "liberty" interest and the constitutional right of privacy); Brooks v. Parkerson, 454 S.E.2d 769 (Ga. 1995), cert. denied, 116 S. Ct. 377 (1995) (same); People v. DeJonge, 501 N.W.2d 127 (Mich. 1993) (finding a constitutional right for parents to direct the education of a child due to parents' religious convictions, and that statutory regulation of this right requires strict scrutiny); J.B. & L.B. v. Washington County, 905 F. Supp. 979, 987 (D. Utah 1995) appeal docketed, No. 93-CV-1038 (10th Cir. 1996) (recognizing a "right [] of familial association").

This Comment addresses a right originating in the Ninth Amendment that is applied through the Fourteenth Amendment, cf. Roe v. Conn, 417 F. Supp. 769, 779 (M.D. Ala. 1976), and that in some ways is an analytic refinement of the Fourteenth Amendment analysis applied in Brooks.

[FN4]. State interference with the parent-child bond is often framed as a "parental rights" issue. However, the same issue could also be framed as one of state interference with the right of a child. Courts have noted that children have a concomitant fundamental right to the state of well-being which derives from "'the continuity of affectionate care from those to whom [they are] attached through bonds of love."' Roe, 417 F. Supp. at 776 (quoting testimony from expert witnesses Dr. Sally A. Provence and Dr. Albert J. Sonit, child development specialists at Yale University); see also, e.g., In re J.P., 648 P.2d 1364, 1377 (Utah 1982).

From a child's right perspective, the argument is that since children cannot represent themselves, they have a right to be represented by those who have the most similar alignment of familial, biological, property, and economic interests. When the state interferes with the parent-child bond, it imposes a disinterested caretaker upon the child. Over a long period of time, the service rendered by a caretaker who is motivated by the bonds of affection and/or a close alignment of interests with the child is likely to be quite different than the service rendered over the long term by a disinterested party. Caretakers with professional expertise in some specialty may have a more refined clinical approach to some facet of a child's development, but professionals have no special systemic motivation to apply their services to obtain the maximum benefit for a particular child when assistance requires a significant personal, emotional, or financial investment or risk. This will be noted in more depth later. See infra part IV.D.4.

The same concept applies to other concerns that are de facto concerns when parental rights are litigated. For example, parents who are forced to defend against improper state interference often must expend tremendous quantities of time, money, and emotional energy in the effort. Yet if parents' financial resources are depleted defending against state interference, the children of those traumatized parents are also likely to have a lower standard of living and a depleted inheritance.

It is important to be mindful of this dual perspective as "parental" rights issues throughout this Comment are discussed.

[FN5]. Roe, 417 F. Supp. at 779.

[FN6]. The ruling in People v. Bennett provided much of the impetus for the introduction of the Parental Rights and Responsibilities Act of 1995. See Appendix A for the full text; see also infra note 47. The bill represents a Congressional attempt to provide sweeping statutory protection for a general Constitutional right, a right which advocates of the Act feel has been accorded inadequate protection by federal and state courts.

As such, the Parental Rights Restoration Act presents many of the same philosophical and constitutional issues as the Religious Freedom Restoration Act. Indeed, three justices who helped form the majority opinion in Bennett also formed the minority DeJonge opinion advocating the interpretive approach of Employment Div., Dep't of Human Resources v. Smith, 494 U.S. 872 (1990), to the free exercise of religion--a standard less protective than the previous "strict scrutiny" standard. DeJonge, 501 N.W.2d at 134 n.27; id. at 144 (Mallett, J., dissenting).

[FN7]. Economist Oliver E. Williamson notes:

[Iredell Jenkins] maintains that the study of the law will benefit from efforts to "expose the complexity of the problem and the framework within which it must be resolved, to clarify the issues at stake, to direct attention to repercussions and consequences that are not immediately apparent, and to protect deliberation against the appeals of . . . expediency while guiding it toward an outcome that is reasoned and principled."


OLIVER E. WILLIAMSON, THE ECONOMIC INSTITUTIONS OF CAPITALISM 398 n.16 (1985) (quoting IREDELL JENKINS, SOCIAL ORDER AND THE LIMITS OF THE LAW 62 (1980)).

[FN8]. This phrase refers to factually unwarranted or procedurally improper interference with families. There are, of course, numerous instances where dedicated, caring professionals properly intervene to render beneficial service and/or coordinate with willing family participants toward some legitimately established goal. This Comment is not intended to disparage individuals who have sought to do the best job possible under difficult circumstances; rather, the focus is on identifying the legal principles that minimize the likelihood of unwarranted or improper interference with family functions.

The issues and challenges associated with the organizational behaviors identified in this Comment are driven by monetary incentives inherent in organizational design. The incentives lend an inertia to situations that is separate from the culture or sentiments of the underlying population. Cf. John Gatto, An Award-Winning Teacher Speaks Out, UTNE READER, Sep. 1990, at 73, 73 [hereinafter Gatto, Award-Winning Teacher] ("[T]housands of humane, caring people work [in state agencies], but the abstract logic of the institution overwhelms their individual contributions. Although [people] do care and do work very, very hard, the institution . . . has no conscience.").

Similarly, this Comment should not be construed as advocating a position on how any particular family should exercise its rights. This Comment simply maintains that the right to direct the family through managerial choice rests with the parents. A managerial decision that is beneficial for one family may be harmful for a different family, depending on the unique needs of each family unit in question.

[FN9]. In divorce proceedings where one parent opposes the judgment of the other parent, a "'best interest of the child"' standard can be "entirely appropriate." Roe, 417 F. Supp. at 779 n.12.

[FN10]. In re J.P., 648 P.2d 1364, 1373 (Utah 1982) (quoting 1 WILLIAM BLACKSTONE, COMMENTARIES *446) (ommissions in original).

[FN11]. In re Appeal in Maricopa County, Juv. Action No. J-75482, 536 P.2d 197, 206 (Ariz. 1975) (en banc)(Struckmeyer, V.C.J., concurring and disenting)(citing In re Hudson, 126 P.2d 765 (Wash. 1942)); see also School Bd. Dist. No. 18 v. Thompson, 103 P. 578, 578-79 (Okla. 1909).

[FN12]. Thompson, 103 P. at 581.

[FN13]. Socialization is defined in organizational behavior literature as "the process by which a new member learns [a] value system, [group] norms, and . . . required behavior patterns." Edgar H. Schein, Organizational Socialization and the Profession of Management, 9 SLOAN MGMT. REV. 1, 2 (1968). Usually socialization is in furtherance of a specific agenda, as it inculcates goals, preferred means for attaining goals, role responsibilities and preferred behavior patterns. Id. at 2.

Part IV.E.3 of this Comment does not address the inherent legal and ethical questions raised when the state seeks to create official value systems, norms, or behavior patterns. Nor does it examine the issues that arise from forcibly subjecting individuals to an officially sanctioned socialization process. Rather, it touches on situations where the state challenges parental rights by seeking to subject a child to a socialization process against the wishes of the child's parents. This focus is congruent with Justice Riley's charge that "the [Michigan] state teacher certification requirement attempts to standardize the education of the Bennett children to state-imposed dictates in derogation of parents' constitutional rights." People v. Bennett, 501 N.W.2d 106, 126 (Mich. 1993).

[FN14]. Sheridan Rd. Baptist Church v. Department of Educ., 396 N.W.2d 373, 408 n.30 (Mich. 1986) (footnote added), cert. denied, 481 U.S. 1050 (1987).

[FN15]. Thompson, 103 P. at 578.

[FN16]. Brooks v. Parkerson, 454 S.E.2d 769, 772 (Ga. 1995) (quoting In re L.H.R., 321 S.E.2d 716, 722 (Ga. 1984)), cert. denied, 116 S. Ct. 377 (1995).

[FN17]. From the standpoint of impacting mass populations, compulsory public education and state social service agencies arguably are the two mechanisms which have most effectively weakened parental rights. This is because they (1) shifted the American cultural nadir from the home to outside institutions, and (2) provided legal avenues for overriding parental decisions that did not exist within early American common law.

Compulsory attendance in particular gained widespread popularity during the post-Civil War Industrial Revolution. Factory and mine owners needed large groups of semi-educated, subservient laborers and organizational cultures that rewarded conformity. Accordingly,

[American public] schools were designed by Horace Mann and Barnas Sears and W.R. Harper of the University of Chicago and Thordyke of Columbia Teachers College and others to be instruments of the scientific management of a mass population. Schools [were] intended to produce, through the application of formulae, formulaic human beings whose behavior [could] be predicted and controlled.


John Gatto, Why Schools Don't Educate, THE SUN, June 1990, at 24 [hereinafter Gatto, Why Schools Don't Educate]. Public schools were thus expressly designed by Horace Mann to "break children away from parents." Id. at 27; see also HARRY BRAVERMAN, LABOR AND MONOPOLY CAPITAL: THE DEGRADATION OF WORK IN THE TWENTIETH CENTURY 66-67 (1974) (discussing an English industrialist who attempted to create a village culture, complete with schools, which was entirely focused on enhancing his company's production); Thomas Toch et. al., Why Teachers Don't Teach, U.S. NEWS & WORLD REP., Fed. 26, 1996, at 62 ("by embracing old-style industrial labor tactics, the unionism of traditional auto plants and steel mills, the AFT and the NEA have given teaching the feel of classic blue-collar work").

Because the parental influence on a child was difficult to control, parents would naturally qualify as an unacceptable contamination of the scientific management process. This sentiment among the politically influential provided a political climate and financial support for activities conducive to the legal and de facto erosion of parental rights.

In areas where the compulsory attendance laws were aggressively implemented, the general population sometimes reacted with intense resistance. As 1990 New York City Public School Teacher of the Year John Gatto explained, Horace Mann's announced goal of using schooling to separate parents and children met with fierce opposition:

[The American] form of compulsory schooling is an invention of the state of Massachusetts around 1850. It was resisted--sometimes with guns--by an estimated 80 percent of the Massachusetts population, the last outpost in Barnstable on Cape Cod not surrendering its children until the 1880s, when the area was seized by the militia and children marched to school under guard.
. . . Sen. Ted Kennedy's office released a paper not too long ago claiming that prior to compulsory education the state literacy rate was 98 percent, and after that the figure never reached above 91 percent.


Gatto, An Award-Winning Teacher, supra note 8, at 73.

More gradual subsequent approaches to implementing compulsory education in other states insured that with "[t]he mid-19th century . . . onset of public schooling, and with the passing of compulsory attendance laws, parents almost universally abdicated the traditional responsibility of educating their children." J. Gary Knowles, Parents' Rationales for Operating Home Schools, J. CONTEMP. ETHNOGRAPHY, Jul. 1991, at 203, 205.

The Bennett decision was handed down in Michigan, a state with a particularly strong scientific management industrial base associated with automobile manufacturing.

[FN18]. Although American common law and constitutional jurisprudence has traditionally afforded broad deference to parental decisions regarding the upbringing of a child, the protection has rarely been uniform for parents in all American subcultures. Refer to section IV.E.3.b, infra, for a documented analysis of parental rights for selected American subcultures. As will be discussed further in Part IV.E.3.b, Native Americans, African Americans, Mormons, Amish, and Hispanics were at various times and to various degrees deprived of control over the upbringing of their children.

Usually the denial of parental rights coincided with other acts of government that orchestrated or sanctioned aggression against the subculture in question. In recent years, of course, it has become common knowledge that Native Americans, African Americans, Hispanics, and Mormons were subjected to government-sanctioned civil rights violations such as forced geographical relocation, the seizure of property, the denial of free expression, and the denial of representation in the political process. Because the campaigns took place when these subcultures were unpopular with the general public, however, denial of parental rights often went unchallenged during the relevant historical period.

[FN19]. For example, "the parent ha[d] the right to make a reasonable selection from the prescribed studies for his child to pursue, [as] this [could not] possibly conflict with the equal rights of other pupils." Thompson, 103 P. at 580. The right was "paramount to that of [public education] trustees or teacher[s]." Id.

Public education officials could "only . . . withdraw from the parent the right to select the branches [of learning] to be studied by the child, to the extent that the exercise of that right would interfere with the system of instruction prescribed for the school . . . to all entitled to share in its benefits." Id.; see also Ralph D. Mawdsley, Annotation, Parental Rights and Public Education, 59 Educ. L. Rep. (West) 271, 275 (1990) (citing Rulison v. Post, 79 Ill. 567, 573 (1875); Trustees of Schools v. People ex rel. Martin Van Allen, 87 Ill. 303, 309 (1877)).

The CENTURY EDITION OF THE AMERICAN DIGEST (1897-1904), covering the period from 1658 to 1896, is devoid of cases where public education systems attempted to regulate or override parental decisions that did not interfere with the internal programs conducted within a public school.

[FN20]. Thompson, 103 P. at 581.

[FN21]. The Fourteenth Amendment, in relevant part, provides:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.


U.S. CONST. amend. XIV, 1.

Beginning with Adamson v. California, 332 U.S. 46 (1947), courts gradually came to understand the Fourteenth Amendment as extending the guarantees of fundamental rights in the United States Constitution so that such guarantees also constrained the actions of state governments. This interpretation is now commonly understood to encompass rights under the Ninth Amendment. Id. at 80-90 (Black, J., dissenting); see also Akhil R. Amar, The Bill of Rights and the Fourteenth Amendment, YALE L.J. 1193 (1992) (arguing that original intent analysis supports incorporation of the Bill of Rights into Fourteenth Amendment protection); Akhil R. Amar, The Original Meaning of the Fourteenth Amendment: Did the Fourteenth Amendment Incorporate the Bill of Rights Against the States?, 19 HARV. J.L. & PUB. POL'Y 443 (1996) (same).

[FN22]. The Ninth Amendment provides: "The enumeration in the Constitution of certain rights, shall not be construed to deny or disparage others retained by the people." U.S. CONST. amend. IX. See also section IV.B., infra.

[FN23]. See, e.g., In re J.P., 648 P.2d at 1377. Another source of protection for parental rights could be "the right of the people peaceably to assemble," under U.S. CONST. amend. I, or the protection of "liberty," under U.S. CONST. amends. V, XIV 1, or the protection of familial privacy in the context of quartering of soldiers, under U.S. CONST. amends. III, IX. See also supra note 21; infra note 150, 184.

[FN24]. "[T]he interest of parents in their relationship with their children is sufficiently fundamental to come within the finite class of liberty interests" entitled to due process under the Fourteenth Amendment. In re J.P., 648 P.2d at 1372, (quoting Santosky v. Kramer, 455 U.S. 745, 774 (1982)); see also Roe v. Conn, 417 F. Supp. 769, 779 (M.D. Ala. 1976); Alsager v. District Court, 406 F. Supp. 10, 15 (S.D. Iowa 1975), opinion adopted by 545 F.2d 1137 (8th Cir. 1976); Brooks v. Parkerson, 454 S.E.2d 769, 772 (Ga. 1995), cert. denied, 116 S. Ct. 377 (1995); People v. Bennett, 501 N.W.2d 106, 112 (Mich. 1993); State v. Whisner, 351 N.E.2d 750, 768-69 (Ohio 1976); Bryant v. Brown, 118 So. 184, 188 (Miss. 1928); In re Monnig, 638 S.W.2d 782, 785 (Mo. Ct. App. 1982); supra note 23.

In Bennett the majority conceded that the Bennetts' procedural rights under Michigan's statutory law had been violated. 501 N.W.2d at 118. This Comment focuses only on Bennett's implications relative to parental rights.

[FN25]. See, e.g., In re Valenti, 224 Cal. Rptr. 10, 12 (Cal. Ct. App. 1986) (citing Sail'er Inn Inc. v. Kirby, 485 P.2d 529 (Cal. 1971) (en banc) ("A measure which is found to adversely affect a 'fundamental right' will be subject to the strict scrutiny test.")).

[FN26]. 268 U.S. 510 (1925).

[FN27]. 262 U.S. 390 (1923).

[FN28]. 406 U.S. 205 (1972).

[FN29]. See Meyer, 262 U.S. at 390; Roe, 417 F. Supp. at 777; Alsager, 406 F. Supp. at 15; Brooks, 454 S.E.2d at 771-72.

[FN30]. See Bennett, 501 N.W.2d at 123 n.10 (Riley, J., dissenting), in relation to interpretation of Pierce, 268 U.S. at 510, and Meyer, 262 U.S. at 390.

[FN31]. 381 U.S. 479 (1965).

[FN32]. See id. at 482; Yoder, 406 U.S. at 213.

[FN33]. Yoder, 406 U.S. at 205.

[FN34]. Griswold, 381 U.S. at 479.

[FN35]. Runyon v. McCrary, 427 U.S. 160, 161-62 (1976).

[FN36]. Prince v. Massachusetts, 321 U.S. 158, 171 (1944) ("Our ruling does not extend beyond the facts the case presents.").

[FN37]. Moore v. City of East Cleveland, 431 U.S. 494 (1977) (plurality opinion).

[FN38]. Potentially helpful court opinions often articulate no rationale when overriding parental rights, e.g., State v. Lowry, 383 P.2d 962 (Kan. 1963); explicitly limit the scope of the ruling to the unusual factual context of the case in question, e.g., Prince, 321 U.S. at 171 ("Our ruling does not extend beyond the facts the case presents."); or are fragmented into plurality decisions, e.g., Moore, 431 U.S. at 494.

Many court decisions directly contradict holdings in other jurisdictions. Compare, e.g., State v. Edgington, 663 P.2d 374, 378 (N.M. Ct. App. 1983) (finding that a state can intrude into the family to force interaction between children and people repudiated by the parents) with Brooks, 454 S.E.2d at 773 n.6 (holding that a constitutionally protected parental right prevents government from imposing third party interaction with children when the parents were opposed to the relationship); compare Blackwelder v. Safnauer, 689 F. Supp. 106 (N.D.N.Y. 1988) and State v. Superior Court, 346 P.2d 999 (Wash. 1959) (en banc) (holding that free exercise rights do not protect children from attendance at institutions repugnant to their parents' beliefs) with People v. DeJonge, 501 N.W.2d 127 (Mich. 1993) (holding that free exercise right prevents state from using certification requirement to force children to attend an institution repugnant to parents' beliefs); compare Bennett, 501 N.W.2d at 116 (placing burden of proof on home-educating parents challenging statute) with In re Charles, 504 N.E.2d 592, 601 (Mass. 1987) (stating that public school committee bears ultimate burden of proving inadequacy of home education); compare People v. Turner, 263 P.2d 685 (Cal. App. Dep't Super. Ct. 1953) (finding that certification mandate does not violate any constitutional parental right) with State v. Whisner, 351 N.E.2d 750 (Ohio 1976) (finding that operational standards for non-public schools violated fundamental parental rights under both the First and Fourteenth Amendments); compare People ex rel. Portnoy v. Strasser, 104 N.E.2d 895, 896 (N.Y. 1952) (recognizing that fundamental right of parents to bring up children beyond the reach of any court) with Concerned Citizens for Neighborhood Sch., Inc. v. Board of Educ., 379 F. Supp. 1233, 1237 (E.D. Tenn. 1974) (holding that the natural rights of parents "to the custody and control of his infant child may be restricted and regulated by municipal law").

Even in cases where courts have directly mentioned parental rights separately, they may neglect to explain the source of the right, the scope of the right, or the level of scrutiny required when the state attempts to override the exercise of the right. See, e.g., Jernigan v. State, 412 So. 2d 1242, 1246-47 (Ala. Crim. App. 1982). The Jernigan court appeared to use some strict scrutiny language, but apparently did not afford traditional strict scrutiny deference in upholding the criminal conviction of two Catholic parents who were not in compliance with a compulsory attendance statute.

The only foreseeable scenario that seems remotely likely to remedy this current state of confusion would be a decisive, comprehensive, well-reasoned, and articulate United States Supreme Court opinion respecting parental rights.

[FN39]. "Alternative education," for purposes of this Comment, means any private, parochial, or home education alternative to public education.

[FN40]. See, e.g., In re Foster, 330 N.Y.S.2d 8, 13 (N.Y. Fam. Ct. 1972):

[T]he [enforcement] actions of the Superintendent and the Local [School] Board cannot be thought of other than as inflexible, short-sighted, bureaucratic and an unnecessary flexing of muscles to show these parents who was "boss." . . . Somewhere in the midst of all these high powered political issues, stand these two girls, 6 and 8, caught in a swirl they fail to understand.


Unfortunately, alternative educators have also used misrepresentations and other questionable tactics against parents when there was a financial incentive to do so:

When Marge Schaeffer, for example, tried to take her third grader out of church school, the principal was completely unsympathetic. In Schaeffer's words, "He said we were foolish, we were fanatical. He said we couldn't possibly offer our children the resources that the school had. If everybody did what we were doing, there'd be a bunch of fruits running around."


Michael S. Shepherd, Home Schooling: Dimensions of Controversy, 1970-1984, J. CHURCH & STATE, Winter 1989, at 101, 105 (citation omitted).

Due to cost considerations, however, "disputes and ambiguities are more often settled by private ordering than by appeal to the courts," WILLIAMSON, supra note 7, at 10, meaning that disputes over an alternative educator's exercise of parental rights are often settled out of court.

To illustrate, one tactic employed by public educators to maintain control over families without court approval has only recently begun to undergo extensive judicial scrutiny. The tactic involves having parents sign consent contracts that in effect waives any possible Constitutional rights the parents have. Usually, the standardized forms supplied by the school district allow school officials to inspect the home, monitor instructional processes, mandate changes in activity and curriculum, and absorb substantial state funding in the child's name. In return, school officials "allow" parents to direct the education of their own child.

Parents who decline to sign the form are threatened with prosecution, and face the prospect of litigation expenses and/or heavy fines with imprisonment. See, e.g., Deirdre M. Childress, Who Controls Emily's Education?: Maryland Mother Battles Officials Over Rules on Home Schooling, WASH. POST, Nov. 25, 1995, at F1 (school officials threatened to initiate prosecution, resulting in 10 days in jail and $11,000 in fines, against mother who refused to sign form). Since "few home-schooling families are affluent," Shepherd, supra at 101, most home-educating parents do not have equal bargaining power, and sign adhesive documents because they lack the financial resources to mount a vigorous defense. See also John Speer, Home Education Thriving Among Utah County Families, DAILY HERALD (Provo, Utah), Feb. 6, 1981, at 4 (Dr. Reed Benson and his wife May address public misperceptions about home education and the John Singer standoff.)

[FN41]. See, e.g., Jernigan, 412 So. 2d at 1242: Turner, 263 P.2d at 685; State v. M.M., 407 So. 2d 987, 989 (Fla. Dist. Ct. App. 1981); Lowry, 383 P.2d at 963; State v. Newstrom, 371 N.W.2d 525, 527 (Minn. 1985); Edgington, 663 P.2d at 376; Whisner, 351 N.E.2d at 752-53; State v. Bowman, 653 P.2d 254 (Or. Ct. App. 1982); State v. Superior Court, 346 P.2d at 1000-01. But see In re Foster, 330 N.Y.S.2d at 8, 12.

In the one located case in which a prosecutor did try to actually substantiate the claim that home instruction was inferior, the prosecutor failed. See Shepherd, supra note 40, at 101, 102, 105.

[FN42]. See, e.g., Concerned Citizens for Neighborhood Sch., Inc., 379 F. Supp. at 1237 ("'[T]he natural rights of a parent to the custody and control of his infant child are subordinate to the power of the State and may be restricted and regulated by municipal law."') (quoting 68 AM. JUR. 2D Schools 227); Edgington, 663 P.2d at 377-78 (stating that the constitutional right of privacy need only receive rational basis deference when parents directed their child's education, and that under such a standard the state could "force[] children to relate to those outside their family," even if the parents objected that the contact was with people with a different "set of attitudes, values, morals, lifestyles and intellectual abilities"); State v. Superior Court, 346 P.2d at 1004 (finding that although the Constitutional "freedom to believe" is "absolute," it does not protect a parental decision to home educate one's children, even when the parent bases such a practice on religious conviction).

See also, e.g., In re McMillan, 226 S.E.2d 693 (N.C. Ct. App. 1976). This case involved Native Americans who refused to send children to a public school on grounds that the parents deemed the instruction incompatible with their family's cultural heritage. The court ruled that "the natural and legal right of parents to the custody, companionship, control and bringing up of their children . . . may be interfered with or denied for substantial and sufficient reason, and it is subject to judicial control when the interest and welfare of the children require it." Id. at 695. As a result, the McMillan court concluded that "the [lower] court [properly] exercised its control to interfere with the natural right of the parents in the best interest and welfare of the children" when it compelled the children to go to the school and found the parents guilty of criminal neglect. Id.

[FN43]. See, e.g., Newstrom, 371 N.W.2d at 525 (finding statute unconstitutionally vague); In re Monnig, 638 S.W.2d 782 (Mo. Ct. App. 1982) (holding that a fundamental parental right required higher evidentiary standard than the one used for educational neglect conviction); Whisner, 351 N.E.2d at 750 (finding that statute violated parental rights protected under free exercise and also under the Fourteenth Amendment).

A possible explanation for the disparity between higher court and lower court case results may be the financial resources of the parents involved. Poor parents are less likely to have the financial resources and access to the sophisticated legal resources needed to mount a robust defense of their rights. On the other hand, litigants that pursue their case to the high courts are more likely to be educated as to the actual nature of their rights and are more likely to do thorough legal research.

[FN44]. For cases relating to Michigan's decade-long effort to purge alternative education activity from the state, see, e.g., Clonlara, Inc. v. Runkel, 722 F. Supp. 1442 (E.D. Mich. 1989); Hanson v. Cushman, 490 F. Supp. 109 (W.D. Mich. 1980); People v. DeJonge, 501 N.W.2d 127 (Mich. 1993); People v. Bennett, 501 N.W.2d 106 (Mich. 1993); Clonlara, Inc. v. State Bd. of Educ., 501 N.W.2d 88 (Mich. 1993); Michigan Dep't of Social Servs. v. Emmanuel Baptist Preschool, 455 N.W.2d 1 (Mich. 1990); Sheridan Rd. Baptist Church v. Department of Educ., 396 N.W.2d 373 (Mich. 1986), cert. denied, 481 U.S. 1050 (1987).

[FN45]. See Edward K. Proctor V, Note, Delconte v. State: Some Thoughts on Home Education, 64 N.C. L. REV. 1302, 1313 (1986); Donald D. Dorman, Note, Michigan's Teacher Certification Requirement as Applied to Religiously Motivated Home Schools, 23 U. MICH. J.L. REF. 733, 756 (1990).

One example of the mandated narrow criteria was a guideline requirement that "all instruction must be given by a teacher certified by the state to teach the subjects being taught, and the certificates evidencing this must be registered with the Intermediate Superintendent's Office." Bennett, 501 N.W.2d at 109 n.7.

The obstacles involved in obtaining teacher certification in nearly any state were illustrated in That's Outrageous: It Doesn't Add Up, READER'S DIG., July 1991, at 72, 72-73. The piece reported that Georgia high school officials fired Ira Joseph, an engineer who had previously studied at West Point and Virginia Tech, even though there was a shortage of qualified math teachers at the school. Although Joseph's mathematical background was sufficient for a lengthy career that included participation in the design of the F-15 fighter plane, his qualifications did not technically meet the requirements for teacher certification as a math teacher. Following a public outcry, Joseph was later reinstated on probation after he agreed to take additional courses to fulfill the certification requirements. See also Toch, supra note 17, at 62 (noting that a variety of systemic problems drive good teachers out of schools, and describing how Harvard education graduate student Tracy Seckler was prevented from certifying as a substitute teacher in New York City because of a technicality).

[FN46]. Cf. Whisner, 351 N.E.2d at 768 ("[T]he state's 'minimum standards' . . . are so pervasive and all-encompassing that total compliance with each and every standard . . . would effectively eradicate the distinction between public and non-public education, and thereby deprive [parents] of their traditional interest.").

[FN47]. S. 984, 104th Cong., 1st Sess. (1995), microformed on Sup. Docs. No. Y. 1.4/1:104-1-182 (U.S. Gov't Printing Office). The act is a sweeping proposal that gives substance to the phrase "family values." See also supra note 6. Given the importance of the issues addressed in the Act, there is surprisingly little public dialogue concerning the bill.

It is very helpful to consider the act in detail and compare it to the analysis of parental rights in this Comment. The Act, which is included in Appendix A at the end of this Comment, illustrates that lawmakers are becoming increasingly aware of the parental rights controversy. As reflected by the structure of the act, lawmakers are also recognizing that parental rights are rarely eliminated directly; rather, deference to parents is almost always achieved through the de facto effects of judicial disposition of appurtenant issues. Standards relating to proper judicial constitutional scrutiny, procedural due process, evidentiary rules, and awards for attorneys fees all need to be addressed together for parental rights to be effectively preserved.

[FN48]. People v. Bennett, 501 N.W.2d 106, 108 & n.1 (Mich. 1993).

[FN49]. Id. at 108-09.

[FN50]. Id. at 109 n.6.

[FN51]. Id. at 108-09.

[FN52]. Id. at 108.

[FN53]. Id. at 108 n.3.

[FN54]. Id. at 108-09.

[FN55]. Id. at 109.

[FN56]. Id. at 109 n.6.

[FN57]. Id. at 109.

[FN58]. Id. at 121 (Riley, J., dissenting).

[FN59]. Id. at 110.

[FN60]. Id. at 113.

[FN61]. 262 U.S. 390 (1963).

[FN62]. 262 U.S. 404 (1923).

[FN63]. Bennett, 501 N.W.2d at 112-13.

[FN64]. 501 N.W.2d 127 (Mich. 1993). Previous to the Bennett ruling, the Michigan Court of Appeals had consolidated Bennett with DeJonge, a later case originating in Ottawa County.

Defendants Mark and Chris DeJonge "taught their two school-age children at home in accordance with their religious faith." Id. at 129. The DeJonges were also charged criminally with violating the compulsory attendance law because they did not utilize certified teachers. Id. The DeJonges were sentenced to two years probation, id. at 130, without the prosecutors ever questioning the adequacy the education the children actually received. Id. The DeJonges asserted the same parental right to direct their children's education that the Bennetts had asserted. However, the DeJonges also asserted a constitutional protection embodied in the First Amendment. They claimed an additional right to direct their children's educations in accordance with their religious beliefs, derived from the Free Exercise Clause. Id. at 131.

In contrast to Bennett, the Michigan Supreme Court voted 4-3 in DeJonge to overturn the DeJonge's criminal convictions on constitutional grounds. The court ruled that "the teacher certification requirement is an unconstitutional violation of the Free Exercise Clause of the First Amendment as applied to families whose religious convictions prohibit the use of certified instructors. Such families, therefore, are exempt from the dictates of the teacher certification requirement." Id. at 144.

The Bennetts were also involved in another case, Clonlara, Inc. v. State Bd. of Educ., 501 N.W.2d 88 (Mich. 1993), which was argued and decided on the same day as Bennett and DeJonge. Clonlara, Inc. v. State Bd. of Educ. involved many of the same issues as those in Clonlara, Inc. v. Runkel, 722 F. Supp. 1442 (E.D. Mich. 1989). In the two cases involving Clonlara, Inc.--a home education support organization--Clonlara, the Bennetts and three other families alleged that the Michigan State Board of Education had improperly promulgated regulations designed to restrict home educators. Clonlara, Inc. alleged that school district personnel officers had harassed thirty of its five hundred existing home educating families, had pressured several families into leaving or not enrolling in the Clonlara program, and that two families besides the Bennetts and the DeJonges had also been criminally prosecuted for truancy. See Clonlara, Inc. v. State Bd. of Educ., 501 N.W.2d at 91; Clonlara, Inc. v. Runkel, 722 F. Supp. at 1446-47.

The litigation yielded mixed results; in Clonlara, Inc. v. Runkel, the federal district court employed technical doctrines related to civil rights claims and state's rights and declined to award relief for injuries allegedly suffered as a result of alleged harassment perpetrated by Michigan state education officials. See Clonlara, Inc. v. Runkel, 722 F. Supp. at 1262-68. Later, in Clonlara, Inc. v. State Board of Education, however, the public educators were deemed to have exceeded their authority by promulgating regulations that reached beyond the scope of statutorily conferred authority. Clonlara, Inc. v. State Bd. of Educ., 501 N.W.2d at 99.

[FN65]. Bennett, 501 N.W.2d at 112, 115, 120; DeJonge, 501 N.W.2d at 129, 130 n.5.

[FN66]. Clonlara, Inc. v. State Bd. of Educ., 501 N.W.2d at 95; see also id. at 99.

[FN67]. Bennett, 501 N.W.2d at 108.

[FN68]. Id. at 115.

[FN69]. DeJonge, 501 N.W.2d at 134-35.

[FN70]. See Bennett, 501 N.W.2d at 116, 118 n.39, 120.

[FN71]. Id. at 118 n.39 (citations omitted).

[FN72]. Id. at 116.

[FN73]. Id. at 117.

[FN74]. Id.

[FN75]. Id. at 116 (quoting Metropolitan Life Ins. Co. v. Ward, 470 U.S. 869, 881 (1985)).

[FN76]. Although the majority deemed a compelling interest analysis unnecessary, the majority did infer that a state interest existed. Their rationale was that parents sending their children to public school would "demand their [tax] money's worth of quality for their children." Id. at 117 n.33. The majority implied that public school parents would be more likely than home educators to see that their children received a quality education, since home education does not have a direct relationship between tuition or taxes paid and the resultant education. Id.

[FN77]. DeJonge, 501 N.W.2d at 137.

[FN78]. Id.

[FN79]. Id. at 138. A compelling interest is one which threatens the "safety of welfare of the state in a clear and present manner," id., or seeks to "prevent grave and immediate danger to interests which the State may lawfully protect." Id. at 138 n.42 (citing West Virginia Bd. of Educ. v. Barnette, 319 U.S. 624, 639 (1943)).

[FN80]. Id. at 144 (Levin, J., concurring); see also id. at 143-44.

[FN81]. Three of the justices composing the four-justice majority in Bennett comprised the minority in DeJonge. The two contending factions of the court also differed as to (1) the scope and nature of the state's legitimate interest in the education of children and (2) the degree of state interference needed to accomplish the state interest within its proper scope.

As to the scope and nature of the state's interest, Justice Riley argued for the DeJonge majority that "the state has focused upon the incorrect governmental interest," id. at 139, because "'the State interest . . . lies in ensuring that the children . . . receive an education, not that the educational process be dictated in its minutest detail."' Id. at 139 n.44 (omissions in original) (quoting In re Charles, 504 N.E.2d 592, 600 (Mass. 1987)).

Noting expert testimony that "'no . . . relationship [between certification and student performance] has been found,"' id. at 141 n.51 (quoting Sheridan Rd. Baptist Church v. Department of Educ., 396 N.W.2d 373, 419 n.57 (Mich. 1986)), Justice Riley, dissenting in Bennett, also contended that "the state failed to provide any evidence proving a correlation between the teacher certification requirement and educational achievement, while the Bennetts . . . prove[d] that their children [had] been adequately educated without certified teachers." People v. Bennett, 501 N.W.2d 106, 125-26 (Mich. 1993) (footnote omitted). Riley characterized the DeJonge minority's approach ("the archaic notion that certified instruction is necessary for home schools," DeJonge, 501 N.W.2d at 141) as a theory for interference that was "not supported by evidence," id. at 142, "[m]ere speculation," id. at 142 n.53, and as "'spit[ing] [the state's] own articulated goals,"' Bennett, 501 N.W.2d at 126 (quoting Stanley v. Illinois, 405 U.S. 645, 653 (1972)). Riley concluded that even under the Bennett majority's "reasonableness" standard, the record showed the Bennetts had "met their burden" of evidence, id. at 126 n.17, and "that the requirement [was] not reasonably related to education, thereby negating the necessity of determining whether the higher standard of [strict scrutiny] review is applicable." Id. at 124 n.10.

One might argue that strict scrutiny goes to the issue of who must prove the reasonableness or unreasonableness of a regulation, rather than constituting, as the Bennett majority suggested, a right against reasonable regulation on parental decisions regarding a child's education.

[FN82]. Bennett, 501 N.W.2d at 123 n.10.

[FN83]. Hanson v. Cushman, 490 F. Supp. 109, 112 (W.D. Mich. 1980).

[FN84]. In re Valenti, 224 Cal Rptr. 10 (Cal. Ct. App. 1986).

[FN85]. 427 U.S. 160 (1976). In Runyon the parents of white children objected to the forced integration of black children into a private school on the grounds, inter alia, that such action violated their parental right to direct the education of their children. It was this theory that was addressed and rejected by the Supreme Court. The difficulty in relying upon Runyon as support for diminished parental rights arises from the fact that the parent- child-state interest analysis in Runyon is compounded with the interest considerations of other third parties.

[FN86]. Id. at 178, quoted in Bennett, 501 N.W.2d at 111 & n.14.

[FN87]. 406 U.s. 205 (1972).

[FN88]. Id. at 216, quoted in Bennett, 501 N.W.2d at 113 n.21.

[FN89]. Bennett, 501 N.W.2d at 111 (emphasis omitted); see also id. at 113.

[FN90]. Id. at 115. Three of the Justices composing the four justice Bennett majority attempted to use the same type of wording to assert that there is no First Amendment Free Exercise right in matters pertaining to the educational upbringing of a child in their DeJonge dissent. People v. DeJonge, 501 N.W.2d 127, 145 (Mich. 1993).

[FN91]. See Bennett, 501 N.W.2d at 121-23.

[FN92]. Parham v. J.R., 442 U.S. 584, 602 (1979).

[FN93]. Id.

[FN94]. Id. (quoting Pierce v. Society of Sisters, 268 U.S. 510, 535 (1925)).

[FN95]. Bellotti v. Baird, 443 U.S. 622, 638 (1979).

[FN96]. Pierce, 268 U.S. at 534-35.

[FN97]. Stanley v. Illinois, 405 U.S. 645, 651 (1972), quoted in Bennett, 501 N.W.2d at 122 n.5 (Riley, J., dissenting).

[FN98]. Bennett, 501 N.W.2d at 123 n.10 (Riley, J., dissenting) (citations omitted).

[FN99]. See supra note 38.

[FN100]. Bennett, 501 N.W.2d at 122 n.3 (Riley, J., dissenting).

[FN101]. Cf., e.g., Brooks v. Parkerson, 454 S.E.2d 769, 771-73 (Ga. 1995), cert. denied, 116 S. Ct. 377 (1995); Bennett, 501 N.W.2d at 121- 24; People v. DeJonge, 501 N.W.2d 127, 131-38 (Mich. 1993); In re J.P., 648 P.2d 1364, 1372-78 (Utah 1982); Alsager v. District Court, 406 F. Supp. 10, 14-21 (S.D. Iowa 1975), opinion adopted by 545 F.2d 1137 (8th Cir. 1976).

[FN102]. Cf., e.g., Brooks, 454 S.E.2d at 777-80; Benett, 501 N.W.2d at 116-17; DeJonge, 501 N.W.2d at 147-151; Roberts v. Ward, 493 A.2d 478, 481-83 (N.H. 1985).

[FN103]. Bennett, 501 N.W.2d at 112 n.17, 113 n.23.

[FN104]. Id. at 113 n.21. The majority even went so far as to accuse the defendants of misconstruing a previous Michigan Supreme Court decision, Sheridan Rd. Baptist Church v. Department of Educ., 396 N.W.2d 373 (Mich. 1986), cert. denied, 481 U.S. 1050 (1987), even though the Sheridan Road ruling was written by Justice Riley. Bennett, 501 N.W.2d at 115. Justice Riley wrote the Bennett dissenting opinion in support of the defendants' position, citing her own previous opinion in Sheridan Road for authority. See id. at 124 n.10.

[FN105]. Both sides of the Bennett decision focused on Michigan and United States Supreme Court rulings, but ignored other, more on-point opinions from other states. For example, the Bennett majority did not so much as mention Scoma v. Chicago Bd. of Educ., 391 F. Supp. 452 (N.D. Ill. 1974), even though the Scoma court employed very similar reasoning; the dissent could have utilized opinions such as State v. Whisner, 351 N.E.2d 750 (Ohio 1976).

[FN106]. The Ninth Amendment clearly establishes that there are rights that, although not enumerated in the Constitution, are nonetheless to be protected against disparagement in a fashion similar to rights that are enumerated within the Constitution; the Ninth Amendment reflects an effectual purpose. Although the potential danger of "judicial freewheeling" under the Ninth Amendment is well taken, see Raoul Berger, Suzanna and --the Ninth Amendment, 1994 B.Y.U. L. REV. 51, 56, and longstanding, see Calder v. Bull, 3 U.S. 386, 398-400 (1798), such a hazard is not a wholesale excuse for intellectual laziness or judicial timidity. The Ninth Amendment in effect grants higher courts broad power to restrict judicial free-wheeling by lower courts; invoking the Ninth Amendment can thus as easily be an exercise of judicial restraint as an attempt at judicial lawmaking. Cf., e.g., Joel Williams, Alteration of Language Order Hailed, SAN ANTONIO EXPRESS-NEWS, Sep. 17, 1995, at 1B (parental rights as a constraint on the judiciary).

Ironically, the "judicial freewheeling" concept is only a pseudo-original intent interpretative approach, because the only demonstrably sure way to violate the meaning of the Ninth Amendment is to unequivocally state that no rights other than those specifically enumerated within the Constitution will be protected. The danger of judicial freewheeling cannot change this basic fact. See also infra notes 107, 108.

[FN107]. Cf. Nomination of Robert H. Bork to Be an Associate Justice of the Supreme Court of the United States: Hearings Before the Senate Comm. on the Judiciary, 100th Cong., 1st Sess. 249 (1987). "[T]he ninth amendment was used to employ Bork's methodology against him"; opponents to Bork's confirmation argued that Bork "ignore[d] the implications of the ninth amendment and thus depart[ed] from [his] own stated commitment to constitutional text and original intent." Thomas B. McAffee, The Original Meaning of the Ninth Amendment, 90 COLUM. L. REV. 1215, 1215 & n.5 (1990).

Robert Bork's skittish unease as to the Ninth Amendment is apparent from his subsequent writings. Bork notes that "[o]ne suggestion [as to how rights could be 'retained by the people'], advanced by Russell Caplan and supported by some historical evidence, is the people retained certain rights because they were guaranteed by . . . common law." ROBERT BORK, THE TEMPTING OF AMERICA: THE POLITICAL SEDUCTION OF THE LAW 184 (1990) (citing Russell Caplan, The History and Meaning of the Ninth Amendment, 69 VA. L. REV. 223 (1983)). This appears to be consistent with the interpretive approach explained in section IV.D.1 of this Comment, infra.

Let us concede, arguendo, that the Ninth Amendment really is no more helpful than an ink blot. In the author's view, substituting interpretation of convoluted legal precedent respecting parental rights in place of the Ninth Amendment would merely constitute a substitution of one "ink blot" for another. The difficult decisions would still remain to be decided by judicial action or inaction. This Comment seeks a practical resolution of the parental rights controversy by showing that, relative to parental rights, plenary Ninth Amendment approaches lead inevitably to one consistent methodology for the disposition of the plethora of cases involving parental rights questions. See also supra note 106; infra notes 108, 143.

[FN108]. The role of the Ninth Amendment within constitutional jurisprudence has gained increasing attention of late by courts and scholars alike. For a noted in-depth analysis of this subject, see generally McAffee, supra note 107.

McAffee observes that the traditional "residual rights reading sees the ninth amendment as designed to preserve the scheme of limited powers for securing interests that include, but are not necessarily limited to, traditional sorts of individual rights." Id. at 1221-22. In contrast, "[t]he new orthodoxy . . . holds that the ninth amendment refers to constitutional rights as we generally think of them today--legally-enforceable, affirmatively defined limitations on governmental power on behalf of individual claimants." Id. at 1222. "[T]he view that the ninth amendment provides a sound basis for the discovery and judicial enforcement of unenumerated individual rights is . . . fast becoming the new [political and academic] orthodoxy [and gaining new adherents in the judiciary] . . . ." Id. at 1216.

"The ninth amendment is the only one of the provisions contained in the Bill of Rights that has no antecedent in the English constitution, the common law, the revolutionary period or the Articles of Confederation." Id. at 1227. As such, the Ninth Amendment presents a paradox for those who espouse a literalist original intent interpretation. "[I]t is difficult to see how [originalists] could ignore a constitutional command prohibiting an inference against denying or disparaging unwritten affirmative limitations on governmental power." Id. at 1316. "The command not to deny or disparage unenumerated rights, if it reflected an intent to secure constitutional status for affirmative natural rights that might be omitted, should bind an originalist as much to the search for an appropriate theory of such rights as to enforcing the minimum age requirement for the Presidency." Id. at 1316 n.376. "Under almost any originalist theory, there is room for a more creative role for decision makers--a role that may involve frankly nonoriginalist arguments--whenever the search for meaning does not provide a sufficiently clear answer." Id. at 1317. "[O]riginalism ultimately must be grounded in a theory of constitutionalism rather than in the historical analysis of the ninth amendment or even the constitution as a whole." Id.

McAffee, who advocates the traditional interpretive approach to the Ninth Amendment, concedes:

If there were an area in which traditional skepticism about inquiry into original intent appears to make some sense, then the status of unwritten norms in our constitutional order may be it. This Article has demonstrated that the state ratification debates, which would seem central to the discovery of a clear consensus about the tradition of judicially enforceable natural rights, actually lend support to the positivist conception of the Constitution and Bill of Rights.


Id. at 1320 n.388.

This Comment attempts to advocate the constitutional right to direct the upbringing of a child so as to meet the criteria of several interpretive approaches, including either the "residual" or "affirmative right" approaches to the Ninth Amendment.

Although the concepts of limited government and affirmative rights could be viewed by some as contradictory, it is not clear that the "residual" and "affirmative right" interpretations of the Ninth Amendment are mutually exclusive approaches. Some would argue that preservation of a scheme of limited governmental powers and the support of expansive affirmative individual rights are mutually supportive, or even interdependent, concepts. See generally Lino A. Graglia & Harry Jaffa, A Debate: God and Man in Court, NAT'L REVIEW, Aug. 14, 1995, at 27, 30-32.

Ultimately McAffee reaches an enigmatic conclusion similar to the one that Bork now seems to begrudgingly espouse: "The combination of text, context and historical consensus . . . establishes the meaning of the Ninth Amendment as conclusively as it can for any constitutional provision whose meaning is not self-evident on its face." McAffee, supra at 1318. This result would seem the only way for originalists to reconcile the difficulties in constitutional interpretation. Cf. generally Boris I. Bittker, Interpreting the Constitution: Is the Intent of the Framers Controlling? If Not, What Is?, 19 HARV. J.L. & PUB. POL'Y 9 (1995).

Unsettling though it may be, the Framers arguably left a constitutional device for protecting individual rights that relies on the common sense and moral awareness of the judiciary. See also supra notes 106, 107.

[FN109]. See supra note 3.

[FN110]. The exception, of course, is the natural right that an individual has against involuntary servitude. Because this right was expressly exempted from constitutional protection in the original Constitution, a separate Thirteenth Amendment protection of this natural right was necessitated. See U.S. CONST. art. I, 9, cl. 1; U.S. CONST. art. IV, 2, cl. 3; U.S. CONST. amend. XIII, 1.

[FN111]. THE DECLARATION OF INDEPENDENCE paras. 1-2 (U.S. 1776).

[FN112]. Cf. id.

[FN113]. See, e.g., People ex rel. Portnoy v. Strasser, 104 N.E.2d 895, 896 (N.Y. 1952).

[FN114]. In re J.P., 648 P.2d 1364, 1369 (Utah 1982); see also In re Perales, 369 N.E.2d 1047, 1051 (Ohio 1977).

[FN115]. 648 P.2d at 1364.

[FN116]. Id. at 1373, 1376-77 (quoting Bruce C. Hafen, Children's Liberation and the New Egalitarianism: Some Reservations About Abandoning Youth to Their "Rights," 1976 B.Y.U. L. REV. 605, 628) (footnotes omitted) (alterations in original)) (citation omitted).

[FN117]. Stanley v. Illinois, 405 U.S. 645, 651 (1972), quoted in People v. Bennett, 501 N.W.2d 106, 122 n.5 (Mich. 1993) (Riley, J., dissenting) (alterations and omissions in original).

[FN118]. Arizona State Dep't of Pub. Welfare v. Barlow, 296 P.2d 298, 300 (Ariz. 1956), quoted in In re Appeal in Maricopa County, Juv. Action No. J-75482, 536 P.2d 197, 206 (Ariz. 1975) (en banc).

[FN119]. Anguis v. Superior Court, 429 P.2d 702, 705 (Ariz. Ct. App. 1967) (quoting 2 C.J.S. Adoption of Children 21).

[FN120]. Bryant v. Brown, 118 So. 184, 188 (Miss. 1928) (emphasis added); see also, e.g., In re J.P., 648 P.2d at 1369, 1372 ("fundamental right of a parent to rear [their] child" includes right to "sustain [a] relationship with [their] child," to have "custody," to supervise the "care and nurtur[ing] of the child," to "'direct the upbringing and education"' of the child, and to oversee the "management of their child"); Maricopa County, 536 P.2d at 206 (citing Bryant, 118 So. at 188) (advocating deference to the "parent's right to custody and control [of their child]").

[FN121]. Brooks v. Parkerson, 454 S.E.2d 769, 774 n.6 (Ga.), cert. denied, 116 S. Ct. 377 (1995).

[FN122]. Santosky v. Kramer, 455 U.S. 745, 753 (1982), quoted in In re J.P., 648 P.2d 1364, 1372 (Utah 1982) (emphasis added).

[FN123]. Cf. Brooks, 454 S.E.2d at 771-72 ("[A] constitutionally protected interest of parents to raise their children without undue state interference" has been defined by the U.S. Supreme Court to include the right to "marry," "establish a home," "bring up children," "direct the upbringing and education of [their] children," and to have a "fundamental liberty interest" in "the care, custody, and management of their child."); see also Anguis, 429 P.2d at 705.

[FN124]. In the context of Bennett, for example, the school district's comprehensive control over the a child's activity, safety, meals, associations, value inculcation, and academic learning, for approximately six hours per day, 180 days per year, is hardly a trivial custody issue. Indeed, the concept of custody becomes little more than an empty facade if so much of a parent's decision-making directing the child's upbringing can be overridden in the name of "education," "rehabilitation," or other easily appropriated euphemisms.

[FN125]. As noted by Justice Powell, the Supreme Court appears to have consistently stressed the importance of understanding the "basic reasons" underpinning constitutional protection of the family:

To be sure, [our previous] cases did not expressly consider the family relationship presented here. [Previous Supreme Court] cases were immediately concerned with freedom of choice with respect to childbearing, or with the rights of parents to the custody and companionship of their own children, or with traditional parental authority in matters of child rearing and education. But unless we close our eyes to the basic reasons why certain rights associated with the family have been accorded shelter under the Fourteenth Amendment's Due Process Clause, we cannot avoid applying the force and rationale of these precedents to the family choice involved in this case.


Moore v. City of East Cleveland, 431 U.S. 494, 500-01 (1977) (plurality opinion).

One predominant "basic reason" for "rights associated with the family" as mentioned above is that such rights all protect against outside interference which would "chill" the natural interplay between child and parent. See In re J.P., 648 P.2d 1364, 1376 (Utah 1982).

[FN126]. Moore, 431 U.S. at 501 (plurality opinion).

[FN127]. See Id. at 503 n.10 (plurality opinion) (holding that a right is to be accorded special deference when it is "'necessary to an Anglo-American regime of ordered liberty"'); Lockwood v. Nims, 98 N.W.2d 753, 759-60 (Mich. 1959) (quoting United States ex rel. Flannery v. Commanding General, 69 F. Supp. 661, 664 (S.D.N.Y. 1946)) ("'[T]he provisions for the protection of life, liberty and property are to be largely and liberally construed in favor of the citizen."'); id. at 759 ("A constitutional limitation must be construed to effectuate, not to abolish, the protection sought by it to be afforded.").

[FN128]. Moore, 431 U.S. at 502 (plurality opinion) footnote omitted). This freedom includes protection against state parens patriae claims of "all- encompassing scope and with . . . sweeping potential for broad and unforeseeable application." Wisconsin v. Yoder, 406 U.S. 205, 234 (1972). A state interest and a rational basis justification can be formulated to justify nearly any type of governmental interference.

[FN129]. Parental rights are difficult enough to "fragment" in a rational manner; the task is compounded if privacy, religion, association, due process, free expression, or other rights are also implicated by the facts of a particular case. See, e.g., People v. DeJonge, 501 N.W.2d 127, 145 (Mich. 1993) (involving free exercise and parental rights).

[FN130]. People v. Bennett, 501 N.W.2d 106, 114 (Mich. 1993) (emphasis added); cf. id. at 107-08, 111-16; DeJonge, 501 N.W.2d at 145.

[FN131]. 262 U.S. 390 (1923).

[FN132]. Id. at 401; see also In re Charles, 504 N.E.2d 592, 598- 601 (Mass. 1987) (holding that "the Fourteenth Amendment extend[s] to activities involving child rearing and education"; parents "possess a basic right in directing the education of their children"; the ultimate burden of proving reasonableness of a regulation and inadequacy of the home school is with the state; certification for home educators is unnecessary); In re Monnig, 638 S.W.2d 782, 788 (Mo. Ct. App. 1982) (recognizing that the "fundamental stake of a parent in the educational nurture of a child" encompasses "home instruction"); State v. Whisner, 351 N.E.2d 750, 769 (Ohio 1976) ("[I]t has long been recognized that the right of a parent to guide the education . . . of his or her children is indeed a 'fundamental right' guaranteed by the due process clause of the Fourteenth Amendment.").

[FN133]. The DeJonge dissent utilized the same tactic, asserting that although there is a right of religious exercise, there is no right to direct the religious educational upbringing of one's child. DeJonge, 501 N.W.2d at 145; see also supra note 6.

[FN134]. Bennett, 501 N.W.2d at 111 (second emphasis added); see also id. at 113. Arguably, a "reasonable regulation" standard assumes what it is supposed to delineate.

[FN135]. Id. at 115 (emphasis added). Realistically, it is difficult to imagine that any court would render a decision using the caricatured phraseology disingenuously demanded by the Bennett majority.

[FN136]. Custody has been termed a fundamental constitutional right. See, e.g., Alsager v. District Court, 406 F. Supp. 10, 16 (S.D. Iowa 1975), opinion adopted by 545 F.2d 1137 (8th Cir. 1976); People ex rel. Portnoy v. Strasser, 104 N.E.2d 895, 896 (N.Y. 1952); In re J.P., 648 P.2d 1364, 1372 (Utah 1982) (citing Santosky v. Kramer, 455 U.S. 745, 753 (1982)). "A measure which is found to adversely affect a 'fundamental right' will be subject to the strict scrutiny test." In re Valenti, 224 Cal. Rptr. 10, 12, (Cal. Ct. App. 1986) (citing Sail'er Inn Inc. v. Kirby, 485 P.2d 529 (Cal. 1971)).

When a right is not fundamental, the "rational basis" test applies, requiring that the state prevail "if [the interference] is in any way reasonably related to [any identifiable] state[] interest. Such a relationship is not difficult to establish." Bennett, 501 N.W.2d at 116.
[FN137]. See, e.g., J.B. & L.B. v. Washington County, 905 F. Supp. 979 (D. Utah 1995), appeal docketed, No. 93-CV-1038 (10th Cir. 1996).

In J.B., a civil rights case in which the plaintiff alleged wrongful seizure of a child by police officers, the court determined that a "fundamental right" of a parental "interest in the custody and care of [a] child[]" was implicated in the case, as was the right of "familial association," the right of "privacy," and the "liberty" interest of the Fourteenth Amendment. Id. at 986-87. Although "the procedures taken . . . [were] perhaps not ideal as public policy," id. at 987 n.13, however, the court decided that "not every interference with a fundamental right will trigger strict scrutiny." Id. at 991 (emphasis added). As a result, the court scrutinized police actions under the "rational basis" review, id. at 991, a decision which was key to the court's ultimate decision to uphold police activities against constitutional civil rights claims.

[FN138]. The Bennett majority implicitly and erroneously maintained that a fundamental parental right diminishes in scope and/or importance merely because the state seeks to erode the right rather than completely abolish it.

If a unitary parental right is at issue, then the state has the same burden or justification regardless of the magnitude or semantic characterization of the infringement upon it. For example, if the state must bear the burden of proof to negate the natural right to existence of custody, see Quilloin v. Walcott, 434 U.S. 246, 255 (1978); Nielson v. Nielson, 818 P.2d 1043, 1046 (Utah Ct. App. 1991); In re J.P., 648 P.2d 1364, 1374 (Utah 1982), the state should also be required to justify any significant restriction on the exercise of validly existing custody.

"There are no differences in degrees of protection afforded in the constitutional safeguards. . . . [The court's] duty arises with the trespass itself." Lockwood v. Nims, 98 N.W.2d 753, 760 (Mich. 1959). "[A] statute is either constitutional or it is not. It cannot be constitutional . . . because there is only a 'little' infringement on family autonomy. Rather . . . there is no constitutionally permissible infringement of parental rights to custody and control without a showing of harm to the child." Brooks v. Parkerson, 454 S.E.2d 769, 774 n.6 (Ga. 1995), cert. denied, 116 S. Ct. 377 (1995).

[FN139]. Wells v. Children's Aid Soc'y of Utah, 681 P.2d 199, 206 (Utah 1984); see also supra notes 120-129.

[FN140]. "The state's interest in protecting children is not absolute [either]. It must be balanced against the parents' countervailing interest in being able to raise their children in an environment free from government interference." Alsager, 406 F. Supp. at 22.

The state's interest also needs to be balanced against the child's interest in the well-being that derives from "'the continuity of affectionate care."' Roe v. Conn, 417 F. Supp. 769, 776 (M.D. Ala. 1978) (quoting testimony from expert witnesses Dr. Sally A. Provence and Dr. Albert J. Solnit, child development specialists at Yale University).

[FN141]. Cf. In re J.P., 648 P.2d at 1377.

[FN142]. See infra IV.D and IV.E.

[FN143]. This approach is analogous to the process used to define the scope and meaning of the Seventh Amendment right to a trial by jury, but it is less rigid and confining. Cf. U.S. CONST. amend. VII ("[N]o fact tried by a jury shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law."); Dimick v. Schiedt, 293 U.S. 474, 476 (1935) ("[R]esort must be had to the appropriate rules of the common law established at the time of the adoption of that constitutional provision in 1791."); 13 THE OXFORD ENGLISH DICTIONARY 768-69 (2d ed. 1989) ("[R]etain" means "to prevent from departing, issuing, or separating, to hold fixed in some place or position," "[t]o keep hold or possession of; to continue having or keeping," "[t]o continue to use, practice, recognize," "to preserve," "to remember," "[t]o continue, remain"); see also Baltimore & Carolina Line v. Redman, 295 U.S. 654, 657 (1935).

In pursuing this approach to constitutional issues, various courts have researched and articulated the nature of the common law characterization of parental rights to ascertain what is protected by the constitution. Cf. also BORK, supra note 107, at 184 (citing Russell Caplan, The History and Meaning of the Ninth Amendment, 69 VA. L. REV. 223 (1983) (using common law to interpret Ninth Amendment).

[FN144]. Lockwood v. Nims, 98 N.W.2d 753, 758 (Mich. 1959) (citation omitted).

[FN145]. Id. at 759.

[FN146]. In re J.P., 648 P.2d at 1373. For a discussion of the criticism of this presumption, refer to infra sections IV.D.4-5 and IV.E.2.

[FN147]. Wisconsin v. Yoder, 406 U.S. 205, 232 (1972).

[FN148]. See School Bd. Dist. No. 18 v. Thompson, 103 P. 578, 578-79 (Okla. 1909); cf. Suzanna Sherry, The Ninth Amendment: Righting an Unwritten Constitution, 64 CHI.-KENT L. REV. 1001 (1988).

[FN149]. Capital Traction Co. v. Hof, 174 U.S. 1, 13-14 (1899) (in relation to the fundamental constitutional right of trial by jury).

[FN150]. The information management technologies, organizational structures, transportation systems, infrastructure, and economic resources needed for wide-scale, comprehensive long-term government absorption of family activities were of course unavailable in the Founders' era.

One organizational resource that sovereigns in the Founders' era did have to invade family autonomy was a standing army, as well as government inspectors. Families who were forced to shelter and feed soldiers in their home could be controlled and harassed. The threat of being targeted and subjected to this indignity would, of course, deter many people from challenging the sovereign. The Declaration of Independence contains vociferous complaints about the King, who created "a Multitude of new Offices" and sent "[s]warms of officers" to "harass" the people. THE DECLARATION OF INDEPENDENCE paras. 2, 12-13, 15-16, 26 (U.S. 1776). Complaint was also made about "[s]tanding [a]rmies" that quartered troops in civilian homes, and the promulgation of regulations which had "destroyed the [l]ives of [the] [p]eople." See Id., at paras. 13, 15-16.

As a result of these experience, the Founders pointedly devoted an entire constitutional amendment solely to protecting the sanctity of the home. Their response to systemic state infringement upon family autonomy is embodied in U.S. CONST. amend. III, which provides that "No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law." The use of standing armies was carefully restricted and placed under direct control of congress. See U.S. CONST. art. I, 10, cl. 3.

[FN151]. In re J.P., 648 P.2d at 1372 (quoting Prince v. Massachusetts, 321 U.S. 158, 166 (1944)).

[FN152]. See, e.g., Parham v. J.R., 442 U.S. 584, 600-03, 610-11 (1979); Dickson v. Lascaris, 423 N.E.2d 361, 363 (N.Y. 1981) (holding that the "rule fosters both [parents' and child's] interests by recognizing that they ordinarily converge").

As an example of interest convergence, consider the parents' "interest in being able to raise their children in an environment free from government interference," Alsager v. District Court, 406 F. Supp. 10, 22 (S.D. Iowa 1975), opinion adopted by 545 F.2d 1137 (8th Cir. 1976), and the child's interest in the well-being that derives from a "'continuity of affectionate care."' Roe v. Conn, 417 F. Supp. 769, 776 (M.D. Ala. 1978) (quoting testimony from expert witnesses Dr. Sally A. Provence and Dr. Albert J. Solnit, child development specialists at Yale University).

[FN153]. See, e.g., Dickson, 423 N.E.2d at 363; School Bd. Dist. No. 18 v. Thompson, 103 P. 578, 582 (Okla. 1909); cf. Arizona State Dep't of Pub. Welfare v. Barlow, 296 P.2d 298, 301 (Ariz. 1956).

For example, in the educational context, the parent was "quite as likely to make a wise and judicious selection [as to the studies which different pupils should pursue] as the teacher," and it was presumed that parents would "exercise such authority in a reasonable way." Thompson, 103 P. at 579-80.

The cost of governance structures and the nature of bureaucratic distortion, WILLIAMSON, supra note 7, at 93, 131-32, suggest that a parent in a free market is more likely to make wise and judicious selections as to a child's studies than public education officials. It is clear that more study of these issues is needed.

[FN154]. See Davis v. Jurney, 145 A.2d 846, 849 (D.C. 1958) (quoting People ex rel. Kropp v. Shepsky, 113 N.E.2d 801, 804 (1953)); cf. Wisconsin v. Yoder, 406 U.S. 205 (1972); Roe, 417 F. Supp. at 779; Alsager, 406 F. Supp. at 22-24; Barlow, 296 P.2d at 301; People v. Anonymous, 179 N.E.2d 200, 201 (N.Y. 1961); Bryant v. Brown, 118 So. 184, 188 (Miss. 1928).

[FN155]. Parham, 442 U.S. at 603.

[FN156]. Id.

[FN157]. See, e.g., Roberts v. Ward, 493 A.2d 478, 481 (N.H. 1985) (rejecting traditional deference to parental rights because "[t]hey have been found to operate against the state . . . and against the child" and therefore are outdated in the context of "the realities and complexities of modern family life").

[FN158]. Davis, 145 A.2d at 849.

[FN159]. Cf. Bellotti v. Baird, 443 U.S. 622, 638-39 (1979) (citing Bruce C. Hafen, Children's Liberation and the New Egalitarianism: Some Reservations About Abandoning Children to Their "Rights," 1976 B.Y.U. L. REV. 605) (noting that "parental authority [to restrict and direct minors] . . . is one of the basic presuppositions of ["our tradition of individual liberty"]).

Parents need protection against being second-guessed as to decisions they make within the family, just as a judge needs assurance that court management will not be interrupted by easily acquired writs of mandamus. Such protection against the chilling of intimate relationships is prerequisite to effective family management, as well as the existence of any effectual parental right.

Neither the presumption of innocence nor that of rightful possession is explicitly mentioned in the Constitution, although both would seem to be essential logistic prerequisites to rights that are explicitly mentioned in the Constitution.

[FN160]. School Bd. Dist. No. 18 v. Thompson, 103 P. 578, 580 (Okla. 1909); see, e.g., James G. Dwyer, Parents' Religion and Children's Welfare: Debunking the Doctrine of Parents' Rights, 82 CAL. L. REV. 1371 (1994) (asserting that there is no valid rationale for allowing parents the final word on any issue that impacts the well-being of a post-natal child).

[FN161]. Thompson, 103 P. at 580.

[FN162]. Cf. Stanley v. Illinois, 405 U.S. 645, 656 (1972) (discussing risk that pecuniary incentives may cause an institution to "run[] roughshod over the important interests of both parent and child"). Commentators have noted this divergence of state and child interests; Julie S. Rappaport, Note, The Legal System's Response to Child Abuse: A "Shield" for Children or a "Sword" Against the Constitutional Rights of Parents?, 9 N.Y.L. SCH. J. HUM. RTS. 257, 262 (1991) (citing Francis B. McCarthy, Parents, Children, and the Courts: The Confused Constitutional Status and Meaning of Parental Rights, 22 GA. L. REV. 975, 1021 (1988)).

Organizational economics helps explain how the state could act on a wide- scale basis against the interests of children and parents, without government mechanisms being necessarily controlled by some sort of conspiracy or centralized dictator:

A propensity to manage seems to characterize all forms of bureaucratic organization. To be sure, the public sector is widely thought to be especially culpable in this respect . . .
. . . Decision-makers project a capacity to manage complexity that is repeatedly refuted by events. Although such a propensity is well-intentioned, problems regularly turn out to be more difficult and/or managerial competence more limited than managers of complexity originally project.
. . . If . . . pecuniary incentives in [organizations] are weaker than those in markets, then political games and preferences have greater sway.

WILLIAMSON, supra note 7, at 149 (citations omitted).

As a result, "'organizational procedures become valued ends in themselves; the organization strikes bargains with its environment that compromise present objectives and limit future possibilities."' Id. at 148 (quoting RICHARD SCOTT, ORGANIZATIONS 91 (1981)).

Because governmental bureaucracy is created and given efficacy through law, legal professionals have a duty to scrutinize the effects of bureaucracy that law imposes upon society.

[FN163]. People v. Bennett, 501 N.W.2d 106, 117 n.39 (Mich. 1993).

[FN164]. Id. at 109 n.6.

[FN165]. See id. at 125 (Riley, J., dissenting).

[FN166]. Id. at 116 n.31.

[FN167]. Id.

[FN168]. 501 N.W.2d 127 (Mich. 1993).

[FN169]. Dorman, supra note 45, at 737.

[FN170]. In Sheridan Rd. Baptist Church v. Department of Educ., 396 N.W.2d 373, 401 n.9 (Mich. 1986) (Riley, J., dissenting), cert. denied, 481 U.S. 1050 (1987), for example, Michigan education officials had attempted to override parental rights with a burdensome teacher certification requirement, much as in Bennett, but in the context of a private religious school. Justices Boyle, Brickley, Cavanagh, Levin, and Riley, five of the seven justices who later considered Bennett, also considered Sheridan Road.

As in Bennett and DeJonge, no one in Sheridan Road ever so much as alleged that the children were inadequately educated, and no one submitted any evidence to show that certification was actually needed to further the alleged state interest. See Sheridan Rd., 396 N.W.2d at 398-99 (Riley, J., dissenting). When confronted with documentary evidence, "[t]he superintendent [of the Bridgeport Spalding Community School District] . . . admitted concern with the loss of $2,000 in state aid for every student who leaves the public school and enrolls in area nonpublic schools." Id. at 401 n.9 (Riley, J., dissenting). This pattern clearly extends to another Michigan case involving teacher certification and home educators, Hanson v. Cushman, 490 F. Supp. 109, 115 (W.D. Mich. 1980), in which public educators explicitly identified the monetary "expense" home education would impose as an aspect of the state's interest.

Other state education systems show the same preoccupation with their pocket- books. See, e.g., People v. Turner, 263 P.2d 685, 688 (Cal. App. Dep't Super. Ct. 1953) (citing State v. Hoyt, 146 A. 170 (N.H. 1929)); see also infra note 177.

[FN171]. Stanley v. Illinois, 405 U.S. 645, 656-57 (1972). The Supreme Court added that "the Constitution recognizes higher values than speed and efficiency." Id. at 656. The Court was "not asked to evaluate the legitimacy of the state ends, rather to determine whether the means used to achieve these ends are constitutionally defensible." Id. at 652.

The Supreme Court has made clear that state interference with a parent's right to raise children is justifiable only where the state acts in its police power to protect the child's health or welfare, and where parental decisions in the area would result in ["'psychological or physical injury"'] to the child.

Brooks v. Parkerson, 454 S.E.2d 769, 772-73 (Ga.), cert. denied, 116 S. Ct. 377 (1995) (quoting Prince v. Massachusetts, 321 U.S. 158, 170 (1944)).

[T]he "best interest of the child" standard does not come into play to permit interference with the custody and control of the child, over parental objection, unless and until there is a showing of harm to the child without that interference. . . . It is irrelevant, to this constitutional analysis, that it might, in many instances be "better" or "desirable" for a child [to do otherwise].

Id. at 773-74 & n.5; see also supra note 138.

[FN172]. Stanley, 405 U.S. 656 n.8 (citation omitted).

[FN173]. See Margot Hornblower, Fixing the System, TIME, Dec. 11, 1995, at 44, 45. The Los Angeles County child-welfare-services system

requires that both a law-enforcement officer and a social worker visit the family after any report of violent abuse. And both must agree that the child is safe[, as opposed to requiring the officer and social worker to agree that the child is in danger]; otherwise foster care is mandated. The result is that Los Angeles' program is focused less on those who abuse their children outright than on those who [allegedly] neglect their children.

Id. (emphasis added). The family alleged to be in danger is then subjected to 16 visits a month by a social worker; social services collects $1460 a month for each family that is determined to need the most intense level of assistance. Not surprisingly, the Los Angeles system has expanded to include 10,000 children in just three years.

[FN174]. Stanley, 405 U.S. at 656 (quoting Carrington v. Rash, 380 U.S. 89, 96 (1965)).

[FN175]. Id.

[FN176]. See generally Mark H. Murphy, Note, A Constitutional Analysis of Compulsory School Attendance Laws in the Southeast: Do They Unlawfully Interfere with Alternatives to Public Education? 8 GA. ST. U. L. REV. 457 (1992).

Murphy notes that when Alabama public school officials were conducting an evaluation proceeding for alternative educators, there was an inherent conflict of interest problem. The results of proceedings involving the rights of alternative educators should be conducted by people who are not affiliated with a system that may have a pecuniary, legal, and/or public relations interest in the results. Id. at 482-84. Neutral finders of law and fact are a "touchstone" for assessing fairness within the American legal system. Cf. McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 554 (1984).

In other contexts, education associations themselves have recognized the unfairness of such evaluation processes. See, e.g., Hilary Groutage, Small School Districts Fear Proposal, SALT LAKE TRIB., Feb. 20, 1996, at A4 (Utah Education Association takes the position that "it is wrong for the school board--the body that initiates termination action [against teachers]--to sit as judge and jury," and changes are needed because "[i]t brings that neutrality to the process"').

[FN177]. See, e.g., Anthony Cook, When Your Home is the Classroom, MONEY, Sept. 1991, at 104, 109 (school policy formulated to receive $3050 in state aid in the name of home-educated students, but only $655 of value is made available to benefit the home-educated student); People v. Turner, 263 P.2d 685, 688 (Cal. App. Dep't Super. Ct. 1953); see also supra note 170; infra note 178.

[FN178]. See, e.g., Mark Walsh, Oregon Board Mulls New Regulations Concerning Private and Home Schools, EDUC. WK., Nov. 14, 1990, at 25, which reports the information contained in this footnote.

A ballot initiative proposed a $2,500 income tax credit for people who were not consuming public education services. It also included a measure that would prevent the state from tightening regulations on non-public education without voter approval.

The Oregon measure would have removed the two greatest disadvantages to alternative education: the artificially doubled financial cost of supporting public education through taxes while simultaneously paying for alternative options, and the potential for state harassment via accreditation and certification requirements.

The Oregon State Board of Education acted swiftly to retaliate against proponents of the measure. It hastily promulgated regulations adverse to alternative educators so that control over alternative education could be tightened before protections were voted in, and prosecution of parents could be more easily conducted. A publicity campaign was mounted which successfully defeated the initiative. See also supra notes 170, 177.

The National Education Association recognizes that it is slowly losing to alternative educators on a state-by-state basis. In its effort to prevent privatization of education, the NEA has lobbied "the federal government to require home schooling to meet certain federal standards." Megan Christofferson, Enrollment Increasing in Utah Private Schools, DAILY UNIVERSE (Brigham Young University), Feb. 21, 1996, at 1. It has also spent millions of dollars on litigation, public relations campaigns, and lobbying to preserve the financial disincentives legally in place against alternative education. See Toch, Why Teachers Don't Teach, supra note 17, at 62, 70.

[FN179]. State public education officials have a consistent history of initiating proceedings to fine and jail home educators, and/or deprive them of parental custody, in cases where the home educated students were tested at above the academic average. Cf. Shepherd, supra note 40, at 101, 102; Alma C. Henderson, Comment, The Home Schooling Movement: Parents Take Control of Educating Their Children, 1991 ANN. SURV. AM. L. 985, 985 (1992); Casey Banas, More Parents Teaching Children Themselves, CHI. TRIB., May 29, 1989, 1, at 8; see also Dorman, supra note 45, at 736; The Exodus, U.S. NEWS & WORLD REP., Dec. 9, 1991, at 66, 74 ("[H]ome-schooled kids do as well as or better than their public-school peers on national standardized tests.").

Other alleged concerns, such as child abuse or inadequate socialization of children in home schools, are also unwarranted and unsupported by objective evidence. Nor can it be credibly claimed that home education creates truants who are a burden to society. Indeed, home-educated students such as the Bennett children are accepted for admission to most universities, including Ivy League universities and the United States Military Academies, and have recently been represented amongst the Rhode Scholarship and Fulbright Fellowship recipients. See Shepherd, supra note 40, at 101, 102; Tom Wells, Home Schoolers Doing Well Despite Conflicts, DAILY HERALD (Provo, Utah), Dec. 3, 1995, at D1. Some prominent people who were home-educated for a significant period of time include: Ansel Adams, President John Quincy Adams, Andrew Carnagie, Agatha Christie, Thomas A. Edison, Albert Einstein, Benjamin Franklin, Hephzibah Manuhin Hauser, President Thomas Jefferson, President Abraham Lincoln, General Douglas McArthur, Margaret Mead, Yehudi Menuhin, John Stuart Mill, Florence Nightingale, General George Patton, Beatrix Potter, President Franklin D. Roosevelt, Bertrand Russell, Frank Vandiver, Booker T. Washington, President George Washington, President Woodrow Wilson, Andrew & Janie Wyeth. See, e.g., Personal Glimpses: To His Own Beat, READER'S DIGEST, Nov. 1990, at 19, 19; Michael S. Shepherd, Home Schooling: Dimensions of Controversy, 1970-1984, J. CHURCH STATE, Winter 1989, at 102; Deidre Sullivan, Going to School by Staying at Home, THE AMERICAN LEGION, Sep. 1993, at 25, 67. The Bennett majority clearly relied on outdated stereotypes, rather than relying on evidence, in formulating its opinion.

Children suffer neglect and abuse on a wide scale in both public education and social service agencies. Child neglect and abuse are human dysfunctions that pervade any type of social system. As such is the case, the common policy- making practice of speculating about the possibility for child abuse is rarely a productive exercise in the absence of evidentiary analysis.

[FN180]. Consider that the net present value of $2395 given at the beginning of each year at an interest rate of six percent, compounded annually, would total $21,284.06 after 12 years of one student's education. The future value of the money as the child turned 18 would be $40,403.51. Under these assumptions, a school could claim funds with a net present value of $63,852.18 in the names of a family with three children, free and clear of any obligation. Given these assumptions, Clonlara, Inc., a single alternative education organization with 500 families that included the Bennetts, represented around $31,926,090 in revenue for the Michigan public school system. See Clonlara, Inc. v. State Bd. of Educ., 501 N.W.2d 88, 91 (Mich. 1993); People v. Bennett, 501 N.W.2d 106, 115 (Mich. 1993).

When all direct and indirect revenue issues are factored in, the incentive for public schools nationwide to infringe upon the constitutional parental rights of alternative educators is probably of a billion-dollar magnitude.

See generally notes 40, 162, 166, 170, 171, 172, 173, 176, 177, 178, 179, 181, 182, 183, 184, 201, 215, 219, 231.

[FN181]. See, e.g., Mark Walsh, D.C. School-Funding Request Cut Amid Enrollment Flap, EDUC. WK., Mar. 28, 1990, at 5 (District of Columbia City Council cut funding increase proposal by $66 million after discovering that actual school enrollment was 81,301 students, as opposed to the 88,000 figure represented by school officials).

Economic principles help explain these types of behaviors. Monopolistic public agencies such as public schools tend to incur high fixed and variable costs, which costs are the result of an over-investment in asset-specific capital. Specific assets, being those assets which cannot be readily used for other purposes without high switching costs, create exit barriers. Predictably, bureaucratic distortions obtain. Opportunism can eventually lead the public agency and/or its employees to act completely contrary to the purpose for which it supposedly exists. Cf. generally WILLIAMSON, supra note 7, at 47-49, 61-63, 131-62. Such scenarios can contribute to a situation wherein a state agency becomes a vehicle for destroying parental rights, cultural pluralism, and intellectual diversity.

[FN182]. See, e.g., Jonathan Freedman, Foster Child: A Generation of Neglect, a Legacy of Loss, L.A. TIMES, Apr. 9, 1990, at B5. In a scathing commentary, Freedman observes that the Los Angeles County's Department of Children's Services "is huge and powerful and operates virtually unseen"; that the county treats its "awesome responsibility with awful indifference," making the situation "worse" for the 50,000 children it supervises at any given time; and that "[u]nlike most branches of government, the department operates largely beyond public scrutiny, yet its power over young lives is vast." Id. The source of the agency's power is its "authority to directly intervene in parent- child disputes, to remove children from their parents, and to assign [the children] to foster homes. . . . It is hard to imagine a more powerful and potentially invasive role for a government agency." Id.

Freedman further asserts that the "overwhelmed" Department "[b]uild[s] an underclass" by "tortur[ing]" the children through neglect. He notes that negligent caseworkers rarely are sanctioned, that "[d]ozens of children in foster care have been raped, sodomized, beaten . . . [and occasionally] murdered," and that "'[t]here's no emphasis on prevention."' Id. Freedman concludes that "Big Brother may be a fictional fantasy to most of us, but to thousands of children, Big Steparent is a real torment. Foster care . . . resembles a Third World nightmare." Id.

These problems occur nationwide for the 420,000 children that are in such systems at any given time. Despite the $10 billion spent annually, 17% of America's state-prison population were former foster children, and 23% of New York's homeless were once in foster care. "It is clear that public-agency foster care and adoption have become a massive, inefficient system in a state of near-catstro-phe, utterly failing in its basic purpose." Conna Craig, 'John' Puts Face on Problems with Adoption in U.S., DAILY HERALD (Provo, Utah), Nov. 19, 1995, at G11.

Social services departments are immune from many types of criminal or civil negligence actions, even when Department personnel violate procedures concerning parental notification, or court orders respecting care. See, e.g., Novoa v. County of Ventura, 183 Cal. Rptr. 736 (Ct. App. 1982). Unfortunately these types of errors are not uncommon; the competency of such departments is not always adequate to the logistics of the task assumed. See K.L. Billingsley, Sex, Lies, and County Government: Abuse Case Shows It All, SAN DIEGO UNION-TRIB., July 19, 1992, at C4 (noting that, according to a San Diego grand jury, family liberties had been violated by San Diego County in over 300 cases-35% to 70% of children who were taken from their families in the county "should never have been removed from their parental homes").

Courts should apply strict scrutiny deference to parental decisions before placing a child into a system that does not compensate for the erroneous judgments it may force on the child. To the extent that courts presume that a child is automatically more likely to prosper under state care than parental direction, thus effectuating a state interest, the courts assume facts not in evidence. Roe v. Conn, 417 F. Supp. 769, 779 (M.D. Ala. 1976); Alsager v. District Court, 406 F. Supp. 10, 25 (S.D. Iowa 1975), opinion adopted by 545 F.2d 1137 (8th Cir. 1976).

[FN183]. The political and economic incentives of a social services department do not necessarily encourage departments to remedy unacceptable conditions. For example, a "special needs" classification for a child brings federal dollars which terminate when the child is adopted. Today two-thirds of all foster children are categorized as "special needs." "[A]s long as these children come with tax money attached, the public agencies that have a stake in perpetuating the system will do little to reform it. As one foster child put it: 'Everywhere I go, somebody gets money to keep me from having a mom and dad."' Conna Craig, What I Need Is a Mom, READER'S DIG., Nov. 1995, at 122, 124. As a result, children are shuttled from one foster home to another, until even some social workers wonder whether the children would have been worse off if they had been left in their original homes. See Jill Smolowe, Making the Tough Calls, TIME, Dec. 11, 1995, at 40, 44; see also Toch, supra note 17, at 70 (organizational financial incentives that discourage quality teaching).

Public institutions must be open and timely in making decisions on how to efficiently process children through their programs. This creates an inherent dilemma, because labeling a child as "special needs" can have obvious unintended consequences. Being categorized can obviously impact the child's view of himself or herself, and can skew the way in which others act towards the child, see, e.g., Lynn Olson, Eliminate Tracking System, Boston Schools Urged, EDUC. WK., March 28, 1990, at 5, yet realistically it is difficult to see how institutions can be effectively managed without categorization.

A parent is not under a mandate to openly characterize the nature of their relationship with their child; this flexibility allows parents to avoid imposing or enhancing the negative aspects of a child's personal image, nurturing and sheltering the child until they have developed the emotional maturity required to cope with life's harsher realities.

[FN184]. Even judges face political pressures. Judge Phoebe Greenbaum of New York City noted that "'[i]t is any judge's worst nightmare to be involved in a case in which a child dies."' David Van Biema, Abandoned to Her Fate, TIME, Dec. 11, 1995, at 32, 35. Those who evaluate homes for abuse "get no public recognition when [they say a home is fine] and they help mend a broken home . . . . But when a child is killed or injured, they are the first to be second-guessed and blamed." Smolowe, supra note 183, 184, at 40-41.

It is safer for a judge's professional career to favor state agency intervention over family autonomy or unity. The probability of being criticized for doing too little is less than the probability of being criticized for intervening too much, even when the harm inflicted by either type of misjudgment is of the same potential magnitude.

[FN185]. In the parental termination proceedings demanded by the Due Process Clause, the state must prove its factual and legal arguments by clear and convincing evidence. See Alsager, 406 F. Supp. at 24-25; In re Monnig, 638 S.W.2d 782, 785-86 (Mo. Ct. App. 1982).

A "showing" of imminent physical harm, or of clear, present, and actual nontangible harm, should be required before actions against parental rights can proceed. The state should not be permitted to intrude upon family autonomy via self-initiated speculation about theoretical possibilities for harm to a child's interest. Strict scrutiny analysis would minimize the possibility for erroneous interference by requiring that state agencies prove to a neutral fact finder in a neutral venue, by testing or expert examination, that the child alleged to be harmed is actually in the lower 15% of the general youth population as to cumulative academic or psychological performance (or as to other similar types of nontangible harm to a child which are subjectively evaluated).

The Supreme Court has suggested that reliable establishment of clinical facts should utilize a theory or technique that 1) is of a kind that "can be (and has been) tested," 2) "has been subjected to [scholarly] peer review and publication," 3) has an acceptable "known or potential rate of error," and 4) has "[w]idespread acceptance." Daubert v. Merrell Dow Pharmaceuticals, Inc., 113 S. Ct. 2786, 2796-97 (1993).

To illustrate, unless the state can satisfy a standard of <> Alpha = .15, a generous statistical threshold when compared to the more common clinical practice of using <> Alpha = .05, the state should not be allowed to interfere further with parental decision-making. Symptoms of alleged dysfunctional situations should be defined in advance, in a manner compatible with other professional practice. E.g., see generally AMERICAN PSYCHIATRIC ASSOCIATION, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (4th ed. 1994). Various agencies are slowly beginning to appreciate this principle. See Walsh, supra note 181, at 25.

For an example of a situation that arises without evidentiary safeguards against "little infringements," see infra note 182, 188. Court reliance on speculation and stereotypes to justify a "rational basis" should not be sufficient to stand against unrebutted, countervailing, admissible evidence. In the area of alternative education, courts should not be allowed to violate all four of the criteria suggested in the Daubert test.

See generally supra notes, 9, 46, 47, 81, 124, 127, 128, 135, 137, 138, 140.

Of course, the interplay between the state's applicable interest, the specific possible effects on parent and/or child, public policy, and legal precedent will be different in an educational context as opposed to, for example, a medical issue. But the mere fact that specific issues and facts interact in dramatically different ways under the strict scrutiny test does not mean that the strict scrutiny test itself should be arbitrarily and inconsistently applied as to parental rights by the courts. Congress is beginning to address the evidentiary aspects of parental rights, see, e.g., S. 984, 104th Cong., 1st Sess. (1995), microformed on Sup. Docs. No. Y 1.4/1:104- 1-182 (U.S. Gov't Printing Office) (providing for evidentiary standards in a parental rights bill) (reproduced in Appendix A), in an attempt to empower parents so that they can protect their families from violence.

Admittedly, proper procedure may from time to time result in an abuser escaping punishment and abusing another child. This is a regrettable, but unavoidable cost born by all victims of repeat offenders in a society that upholds due process.

[FN186]. See, e.g., J.B. & L.B. v. Washington County, 905 F. Supp. 979 (D. Utah 1995), appeal docketed, No. 93-CV-1038 (10th Cir. 1996). In that case, an anonymous informant alleged that a home educator had engaged in sexual touching of his seven-year-old daughter. The informant told police that the man was a home educator, that the child was currently at the residence, and that the parents were out of town. Id. at 982. Although the police knew the actual identity of the informant, they did not take the legally permissible step of investigating the "background or objective credibility of the informant." Id. at 990.

Since L.B. was home educated, and did not attend public school, the police determined that "'the only time she would be away from her parents"' would be at church. However, the police rejected the idea of covertly interviewing L.B. at church, "due to . . . fears that contact with church authorities and members would draw undue attention." Id. at 983.

The police drove to L.B.'s residence, and were surprised to find that the parents were at home, contrary to the information they had received from their informant. Id. Nonetheless, the officers "physically removed" L.B. from her parents, detained her for 18 hours, kept her overnight in a "shelter care location," and then interviewed her. Id. at 983, 988. However, the police were unable to "observe[] any behavior by L.B., or obtain[] any statement, which would substantiate the child abuse allegations." Id. at 983.

The court determined the following:

1. The police "objectives might have been accomplished within a shorter period." Id. at 988. Overnight detention could have been avoided; "county officials could have taken opportunity after L.B. was removed . . . to explain to [the parents] the nature of the allegations, and the intended course of investigation." Id. at 987 n.13.

2. The "warrant [was] based on probable cause," and "[t]he Supreme Court has set forth a general rule that uncorroborated, anonymous tips do not provide probable cause for the issuance of a warrant. . . . Such reports by anonymous informants may be motivated by malice, and absent sufficient corroboration, do not comport with the requirements of the Fourth Amendment." Id. at 989-90.

3. "Typically, child abuse allegations arise from observation of the child, i.e., bruises, scrapes, or evident emotional insecurities," evidence which the police did not have with L.B. Id. at 987 n.11.

4. The "fundamental right" of a parental "interest in the custody and care of [a] child[]" was implicated, as was the right of "familial association," the right of "privacy," and the "liberty" interest of the Fourteenth Amendment. Id. at 986-87.

5. Although "the procedures taken . . . [were] perhaps not ideal as public policy," id. at 987 n.13, "not every interference with a fundamental right will trigger strict scrutiny," id. at 991 (emphasis added). Consequently, "rational basis" review, id. dictated that the police actions were acceptable due to "the realities of the investigation process," id. at 990. As a result, the "implementation of . . . 'policy, procedure or custom"' had not resulted "in deprivation of plaintiffs' constitutional rights." Id. at 985.

The U.S. Supreme Court has ruled that it is "intolerable that one constitutional right should have to be surrendered in order to assert another." Simmons v. United States, 390 U.S. 377, 394 (1968). This important doctrine of not making the exercise of constitutional rights de facto "costly" has its most frequent application in situations implicating the First, Fourth, and Fifth Amendments. See, e.g., National Acceptance Co. of America v. Bathalter, 705 F.2d 924, 927-28 (7th Cir. 1983); Campbell v. Gerrans, 592 F.2d 1054, 1057-58 (9th Cir. 1979); Black Panther Party v. Smith, 661 F.2d 1243, 1271 (D.C. Cir. 1981), vacated on unspecified grounds, 458 U.S. 1118 (1982).

Rulings and actions that discriminate on the basis of educational preferences are not uncommon, although they are infrequently challenged. However, the exercise of parents' rights to educate their own child is clearly made costly when First and Fourth Amendment protections are lessened as a consequence of such a decision.

[FN187]. Educational performance presumptions applied to alternative education students tend to be stacked against parents in a "heads-we-win, tails-you-lose" type of arrangement. See, e.g., Murphy v. Arkansas, 852 F.2d 1039, 1040-41 (8th Cir. 1988):

[I]f a home school student does not achieve a composite [standardized test] score within eight months of grade level in designated subjects, the student must be placed in a public, private, or parochial school. No such annual testing is required [under the statutory scheme] for students in public, private, or parochial schools. If children not schooled at home are, for some reason, tested, no remedial placement is required for those who do not achieve certain scores.


Thus, parents and children in alternative education are coerced into situations of cyclical testing, so that the family is in ongoing jeopardy of being characterized as a failure. At the same time, access to the General Educational Development (GED) test is carefully restricted so that it is not available to anyone under the age of seventeen in most states. Consequently, there is no opportunity to permanently prevent further governmental intrusion by conclusively passing one test that incorporates basic standards that apply equally to public high school graduates. Cf. MURRAY ROCKOWITZ ET AL., HOW TO PREPARE FOR THE GED HIGH SCHOOL EQUIVALENCY EXAMINATION 866-79 (9th ed. 1995).

Ironically, parents such as the Bennetts begin home educating to rehabilitate their children because the public education experience resulted in deficient academic performance. See People v. Bennett, 501 N.W.2d 106, 121 (Mich. 1993).

[FN188]. See, e.g., Billingsley, supra note 182, 188, at C4.

The article reported the following:

[A]buses of the ["social service bureaucracies of San Diego County"] . . . threaten both the safety of innocent children and the rights of innocent adults . . .
[T]he San Diego County Grand Jury has produced a number of thorough, detailed reports on what our child-protection system has become: corrupt, incompetent, secretive, and arrogant. The abuses have been going on for a number of years. But the case of Alicia Wade brought the problems to the public's attention . . .
On May 8, 1989, an assailant abducted eight-year-old Alicia from her bedroom and brutally raped her. The child's description of the intruder included clothing, color of the hair and eyes, and even a pimple on his chin. She also correctly identified the color of his car. During the subsequent trial, the prosecution objected to Alicia's own description of the attacker as hearsay and, astonishingly, the court sustained the objection.
Child protection officials knew that Albert Raymond Carder, a convicted child molester, had been assaulting children in the same neighborhood. And yet, in spite of all the evidence, the officials maintained from the beginning that Alicia's father, Navy Chief Petty Officer Jim Wade, had been the attacker. [He was subjected to penile plethysmography.]
. . . .
. . . [C]ontrary to the rest of our justice system, the child-protection system assumes guilt . . . . [D]enial is taken as evidence of guilt. . . .
. . . For some 13 months, working without supervision, [a therapist] relentlessly badgered Alicia to accuse her father. The Grand Jury was also alarmed that the therapist taught the eight-year-old Alicia about masturbation "without any parental input or any apparent interest by the child."
Semen left on Alicia's clothing was not examined for almost two years. When it was found, the defense was not told. The test, which requires less than a month, took seven months. After DNA tests on the semen exonerated the father, the District Attorney's office required that the tests be repeated and still prohibited contact between the father and the daughter. Worse, the Grand Jury identified a "race against time to arrange for Alicia's adoption prior to the availability of the DNA results."
. . . .
Alicia had been away from her family for over two years and narrowly escaped being adopted away forever. When she was returned to her family, she was using a medication to which she was allergic, she did not have the glasses she wore when she was detained, [and] . . . . [l]egal fees of over $125,000 left the innocent family impoverished. The psychological damages are incalculable and likely permanent.
. . . The Grand Jury discovered similar elements in some 300 cases. . . . [S]uch problems are national in scope.
. . . .
[T]he funding for foster programs is primarily from federal grants and is practically open-ended. . . .
Foster care, said the Grand Jury, has evolved into a highly-developed [lucrative] cottage industry. . . . The jury concluded that between 35 and 70 percent of foster children "never should have been removed from their parental homes."
. . . .
The Jury lamented that [the responsible agencies] . . . "have neither accepted any responsibility . . . nor critically examined existing policies and procedures . . . ."
. . . .
Incredibly, the Juvenile Court is still giving lucrative referrals to [the therapist] . . . [T]he standard for review of therapists [is] "innocent until proven guilty."
. . . .
One obstacle to reform is that social workers enjoy unqualified immunity from civil actions. On April 21, the Public Safety Committee . . . refused to . . . diminish this immunity.

[FN189]. See Margaret Carlson, The Sex-Crime Capital, TIME, Nov. 13, 1995, at 89; David Van Biema, The Tide Turns in Wenatchee: But Will Justice Prevail?, TIME, Dec. 25, 1995, at 136, 136. In East Wenatchee, Washington, the community's sole sex crimes investigator, Robert Perez, recently used his foster daughter as a witness to accuse 82 adults of child abuse, allegedly committed in 23 different locations. When the articles went to press, one woman had faced 3200 charges of child abuse, and 28 people were already serving sentences. Many of those in prison, half of whom were women, were functionally illiterate, mentally deficient, poor, or otherwise unable to mount a robust defense; no one who has hired private counsel to fight the charges has been imprisoned. One man who had charges meriting eight life sentences saw charges reduced to two misdemeanors after he chose to hire a defense attorney and mount a defense.

As the campaign spread, Perez interviewed other children to gain "recovered memories." He did not take notes, videotape the discussions, or allow parents to be present. He did this because his own notes had been used to impeach some of his previous efforts. After hours of interrogation, Perez would have children sign conclusory statements that he had drafted.

Many of the children who signed statements have recanted, alleging that Perez intimidated and/or induced them into cooperating. Perez pushed for children to be put in foster care; he had one Mormon girl handcuffed, strapped to a gurney and sent to an out-of-state mental institution to get over her "pathological loyalty" to her family. During the process, the girl screamed so loudly that her vocal cords were damaged.

According to Preacher, Wife Acquitted in Child Sex-Abuse Case, USA TODAY, Dec. 12, 1995, at A3, one of the critics of Perez's efforts was a lay Pentecostal pastor and his wife. The couple was charged with child rape and molestation. On the mere basis of the allegation, their five year-old daughter was taken from them, despite the fact that the daughter denied any abuse and the fact that there was no evidence she had ever been abused. After being acquitted, the couple were then forced to seek a return of custody after the lengthy separation.

East Wenatchee citizens have coped in a variety of ways. Some parents have declared bankruptcy; at least one teenage girl fled into hiding; at least one family moved to Canada. Governor Mike Lowry, after receiving a petition signed by 2169 citizens, has begun an investigation. The United States Justice Department has also responded to the local campaign by initiating a civil rights investigation; a state appeals court may free those who have already been jailed. However, the damage caused to shattered lives and families affected by the premature removal of children from their homes, most of which could have been prevented with evidentiary protections derived from the fundamental right to direct the upbringing of a child, is already done.

As Wenatchee illustrates, parents are not afforded a public defense in many types of state actions that infringe on family autonomy; even when a defense is available, many simply capitulate. In Wenatchee, the fact that citizens and community leaders managed to band together to protect themselves prevented the injustices from going unchallenged.

State agencies, in contrast to individual parents or families, have an accumulated body of legal expertise, access to many expensive expert witnesses, numerous resources, and little emotional burden. Hence, the state is in a much better position to present statistical and professional evidence in proof of its position. The state is in a better position to spread the costs of its own systemic inadequacies. As a result, strict scrutiny is a better way to resolve the risk of destroying a functional family and the risk of not protecting a victimized child.

[FN190]. Cf. Proctor, supra note 45, at 1329 n.172.

[FN191]. REX E. LEE, A LAWYER LOOKS AT THE CONSTITUTION 154 (1981). One can argue that the natural law approach is grounded in a certain undiminishable human intuitive sense for moral justice; at the same time, natural law could be criticized as being expansively nebulous. Original intent produces relatively stable, defined outcomes, and has an attraction as an approach that respects the intended parameters of societal contracts, although one could argue that the resulting outcomes are antiquated.

Policy analysis arguably has the advantage of adaptability and relevance; at the same time, one can argue that such an approach is capriciously ill-defined and outcome-determinative and that it is an unstable basis for interpreting the law. It is difficult to find any clear and comprehensively detailed articulation of how such an approach is to work in any given situation.

[FN192]. Cf. Moore v. City of East Cleveland, 431 U.S. 494, 500-01 (1977) (plurality opinion):

To be sure, [our previous] cases did not expressly consider the family relationship presented here. [Previous Supreme Court] cases were immediately concerned with freedom of choice with respect to childbearing, or with the rights of parents to the custody and companionship of their own children, or with traditional parental authority in matters of child rearing and education. But unless we close our eyes to the basic reasons why certain rights associated with the family have been accorded shelter under the Fourteenth Amendment's Due Process Clause, we cannot avoid applying the force and rationale of these precedents to the family choice involved in this case.

The court noted that liberty is a "rational continuum." Id. at 503 n.10.

See also Lockwood v. Nims, 98 N.W.2d 753, 759-60 (Mich. 1959) (quoting United States ex rel. Flannery v. Commanding General, 69 F. Supp. 661, 664, 759 (S.D.N.Y. 1946) (a right is to be accorded special deference when it is "'necessary to an Anglo-American regime of ordered liberty"'; "the provisions for the protection of life, liberty and property are to be largely and liberally construed in favor of the citizen," "to effectuate, not to abolish, the protection sought by it to be afforded").

[FN193]. The majority argued that "'[a] democratic society rests, for its continuance, upon the healthy, well-rounded growth of young people into full maturity as citizens, with all that implies,"' People v. Bennett, 501 N.W.2d 106, 116 n.30 (Mich. 1993) (quoting Prince v. Massachusetts, 321 U.S. 158, 168 (1944)), and that "[i]n general, it can be assumed the state has an interest in seeing that all children . . . are properly educated." Id. at 116.

However, these assertions were inapposite to the questions posed by the case. In her dissent, Justice Riley clearly indicated that she also felt that the state had "a legitimate interest in ensuring the adequate education of all children." Id. at 124. The real difficulty is in defining vague terms such as "proper education," or what is implied by "healthy, well-rounded growth." "Obviously, this is a question about which men and women of ordinary intelligence would greatly disagree. Their answers would vary in large measure in relation to their differing social, ethical, and religious views." Roe v. Conn, 417 F. Supp. 769, 780 (M.D. Ala. 1976).

There are both costs and benefits to living in a diverse society. Although on one hand differing standards for raising a child portend a lack of unity, variation in child raising behavior is also a form of biodiversity that protects the population against pandemic dysfunctions. Subjective ad hoc edicts by state officials are not an effective and fair way of managing diversity. See Alsager v. District Court, 406 F. Supp. 10, 18 (S.D. Iowa 1975), opinion adopted by 545 F.2d 1137 (8th Cir. 1976).

[FN194]. Roberts v. Ward, 493 A.2d 478, 481 (N.H. 1985) (citations omitted).

[FN195]. English and American deference to parental autonomy has a long history, and originally derives from the Judeo-Christian tradition's emphatic support for such policies. See, e.g., Deuteronomy 11:19 (King James) ("And ye shall teach [my words to] your children, speaking of them when thou sittest in thine house, and when thou walkest by the way, when thou liest down, and when thou risest up."); Proverbs 1:8 (King James) ("My son, hear the instruction of thy father, and forsake not the law of thy mother."); Malachi 4:5-6 (King James) (prophesying that Elijah shall "turn the heart of the fathers to the children, and the heart of the children to their fathers, lest [the LORD] come and smite the earth with a curse").

At the same time, Judeo-Christian deference to parental discretion is hardly anomalous or myopic in according deference to parent-child relationships; in most areas of the world, legal precedent and/or cultural practices afford de facto deference to the parent-child relationship. Such deference is reaffirmed by the common experience and needs of all humanity.

[FN196]. See supra part IV.D.3-5; infra parts IV.E.3-4. The effort by some judges to weaken parental rights is incorrect for a plethora of additional reasons that cannot be fully explored here. It is helpful to recall three points that have been raised elsewhere in this Comment.

First, parents need protection against being second-guessed as to decisions they make within the family, just as a judge needs assurance that court management will not be interrupted by easily acquired writs of mandamus. The "'continuity of affectionate care,"' which children need to fulfill the state interest in the child's welfare, Roe, 417 F. Supp. at 778 (quoting testimony from expert witnesses Dr. Sally A. Provence and Dr. Albert J. Solnit, child development specialists at Yale University), usually does not occur otherwise. Second, opponents of pro-family public policy have not conclusively demonstrated that there is an alternative social structure that functions as a long-term substitute for an autonomous family structure in meeting the same range of human needs. Third, even assuming that the family structure was eroding into obsolescence, the fact that some people fail to exercise a legal right responsibly does not justify denying the existence of the legal right itself.

[FN197]. See generally supra parts II.A-B, IV.C-D. Many rights implicitly recognize the family as a situs of societal privacy and wealth production. Cf., e.g., BLACK'S LAW DICTIONARY 741, 967-68, 1465 (6th ed. 1990) (discussing husband-wife privilege, the marital communications privilege, and tenancy by the entirety).

[FN198]. People v. Bennett, 501 N.W.2d 106, 122 n.3 (Mich. 1993) (Riley, J., dissenting) (quoting Bruce C. Hafen, The Constitutional Status of Marriage, Kinship, and Sexual Privacy--Balancing the Individual and Social Interests, 81 MICH. L. REV. 463, 480-81 (1983)) (citation omitted in original).

[FN199]. "Totalitarianism" is a word that carries many emotion-laden connotations. In this Comment, "totalitarian" is used as a political science term, and is defined as being "[o]f or pertaining to a system of government which tolerates only one political party, to which all other institutions are subordinated, and which usu[ally] demands the complete subservience of the individual to the state." 18 THE OXFORD ENGLISH DICTIONARY 287 (2d ed. 1989).

In contrast, "pluralism" as used in this Comment denotes a political

theory which opposes monolithic state power and advocates instead increased devolution and autonomy for the main organizations that represent man's involvement in society. Also, the belief that power should be shared among a number of political parties . . . . The existence of toleration of diversity of ethnic or cultural groups within a society or state, of beliefs or attitudes within a body or institution, etc.

11 THE OXFORD ENGLISH DICTIONARY 1089 (2d ed. 1989).

Both pluralism and totalitarianism can be advocated as approaches for coping with the societal challenges associated with "diversity," which in this Comment is used to denote a variety in the demographic characteristics of a population.

[FN200]. In the education context, early American common law recognized that a due regard for the diverse interests of a child could easily lead a parent to eliminate, delay, or alter the presentation of the subject of study to suit that child's individual development and learning style. School Bd. Dist. No. 18 v. Thompson, 103 P. 578, 580 (Okla. 1909). "'Such pupils are not idle, but merely devoting their attention to other branches; and so long as [such action] . . . does not prejudice the equal rights of other students, there is no cause for complaint."' Id. at 580 (citation omitted).

[FN201]. The Supreme Court in Employment Div., Dep't of Human Resources v. Smith, 494 U.S. 872 (1990) has "equat[ed] the 'right of parents . . . to direct the education of their children' with 'freedom of speech and of the press."' People v. Bennett, 501 N.W.2d 106, 124 n.10 (Mich. 1993) (Riley, J., dissenting) (citations omitted). The Supreme Court has declared that "the State may not, consistently with the spirit of the First Amendment, contract the spectrum of available knowledge." Griswold v. Connecticut, 381 U.S. 479, 482 (1965). Freedom of speech and the press includes "the right to educate one's children as one chooses, . . . the right to distribute, the right to receive, the right to read, and freedom of inquiry, freedom of thought, and freedom to teach." Id. (citations omitted).

In our information age, it is important to recognize that teacher certification, institutional accreditation, mandatory testing, mandated standards, curriculum approval, reading lists, compulsory attendance, forced interaction with third parties, and other similar devices are really disguised forms of "opportunity cost" censorship. In other words, "[t]he cost of choosing to use resources [such as time or money] for one purpose . . . [sacrifices other] alternative[s] for using those resources." DAVID H. HYMAN, ECONOMICS 14 (2d. Instructor's Ed. 1992). "To allow [state mechanisms] to decide who can best provide a child intellectual stimulation could chill the propagation and perpetuation of disfavored political, philosophical, and religious views within the privacy of the family circle," In re J.P., 648 P.2d 1364, 1376 (Utah 1982), even though this information may be quite useful in living in society, and may even be ahead of its time. Frequently public education organizational policy is structured with the open objective of screening informational inputs by precluding literature, debate, or activity that addresses views deemed dangerous by those in control of the design of the educational processes. See, e.g., Donald W. Meyers, Charter School Tabled: Extremist Groups Would Benefit, Educators Warn, DAILY HERALD (Provo, Utah), Feb. 8, 1996, at A7 (education groups lobby Utah legislature to adopt measures designed to prevent "extremist" liberal or conservative ideas from being discussed).

Totalitarians have an additional desire to socialize citizens within the framework of a state dogma. They view education as a bureaucratic instrument of state power, instead of as an informational product that is made available on the market to family consumers. Consequently, education is incorporated as a governmental function that is not subject to the same consumer protection mechanisms as those that apply to the private sector. Overlooked is the fact that public education is one means of reallocating wealth to fund education of the poor, but it is not the only means whereby the poor could receive tax- funded assistance. Failure to allow other educational alternatives has dramatic economic costs, because with politically directed economic mechanisms, "'organizational procedures become valued ends in themselves; the organization strikes bargains with its environment that compromise present objectives and limit future possibilities." WILLIAMSON, supra note 7, at 148 (quoting RICHARD SCOTT, ORGANIZATIONS 91 (1981)).

Once education is viewed as an informational product, a consumer-welfare philosophical orientation arises and a policy incorporating an antitrust type of analysis suggests itself. From a policy standpoint, the actions of anyone providing educational services should be disallowed if they are not pro- competitive, outcome expanding, and beneficial to student consumers. As Justice Stevens noted:

"The heart of our national economic policy long has been faith in the value of competition." Standard Oil Co. v. FTC, 340 U.S. 231, 248. The assumption that competition is the best method of allocating resources in a free market recognizes that all elements of a bargain--quality, service, safety, and durability--and not just immediate the cost, are favorably affected by the free opportunity to select among alternative offers. . .
. . . [L]arge-scale projects affecting public [wellbeing] does not alter [this] analysis. . .
. . .
In sum, the Rule of Reason does not support a defense based on the assumption that competition itself is unreasonable. Such a view . . . would create [a] "sea of doubt." . . .

National Soc'y of Professional Eng'rs v. United States, 435 U.S. 679, 695-96 (1978).

This is not to suggest, of course, that public school actions violate the current body of Antitrust law. "Undoubtedly the most effective kind of barrier is a monopoly restriction from the government." E. THOMAS SULLIVAN & HERBERT HOVENKAMP, ANTITRUST LAW, POLICY AND PROCEDURE: CASES, MATERIALS, PROBLEMS 628 (3rd ed. 1994). Government agencies that exclusively control economic activity can theoretically compel tax contribution, regulate competitors, enlist government resources against competitors, and compel acceptance of substandard services, something that is more difficult for private monopolies. Deduction from economic principles suggests that bureaucratic efforts to restrain trade are most likely to arise when the pecuniary benefits derived from the effort outweigh the costs of conducting the campaign. Efforts to restrict parental rights are therefore most likely to arise when either a few isolated people can be targeted or when a large population shows a propensity to alter its behavior adversely to the pecuniary interests of anti-competitive forces.

Cases such as Bennett unjustifiably foreclose the ability of many parents to protect the economic interests of their child by anticipating and avoiding people who compromise the interests of children for personal economic benefit. See, e.g., Teachers Refusing to Write Letters, DAILY HERALD (Provo, Utah), Oct. 15, 1995, at A10 (New Jersey Teachers' Unions, who were seeking higher pay for teachers, orchestrated a teacher campaign to refuse to write letters of recommendation, to have contact with parents, or to grade papers after the school day. High school applicants to competitive-admission universities, who controlled neither the contracts with teachers nor the criteria for application to universities, were heavily impacted by the denial of the letters.); That's Outrageous, supra note 45, at 72-73 (Georgia high school officials use certification requirements to fire math teacher Ira Joseph, an engineer who had previously studied at West Point and Virginia Tech, even though there was a shortage of qualified math teachers. Although Joseph's mathematical background was sufficient for a lengthy career that included participation in the design of the F-15 fighter plane, his qualifications did not meet the technical requirements for teacher certification as a math teacher.); Toch, supra note 17, at 62 (describing numerous systemic anti-competitive activities and behaviors with in public education).

In today's modern information economy, parental rights are key to preserving academic freedom, checking institutional anticompetitive behaviors, and protecting children from anticompetitive exploitation.

[FN202]. In re J.P., 648 P.2d 1364, 1376 (Utah 1982); see also Roe v. Conn, 417 F. Supp. 769, 779 (M.D. Ala. 1976) ("The fact that a home is 'improper' in the eyes of the state officials does not necessarily mean that a child in that home is subject to physical or emotional harm.").

[FN203]. Plato's vision parallels conditions in the ancient city-state of Sparta. Spartan society was structured as a military regime; youth were permanently separated from parents at the age of seven to become part of the military. Sparta was militarily successful for a time, but is remembered for little else. For a discussion of Spartan society, see generally S.S. LAURIE, HISTORICAL SURVEY OF PRE-CHRISTIAN EDUCATION (1900).

[FN204]. Meyer v. Nebraska, 262 U.S. 390, 401-02 (1923).

[FN205]. In observing later in the opinion that "[t]he power of the state . . . to make reasonable regulations for all schools . . . is not questioned," the Court was not espousing a doctrine, but was merely noting that "[t]hose matters are not within the present controversy." Id. at 402.

[FN206]. See State v. Whisner, 351 N.E.2d 750, 770 (Ohio 1976) (stating that the "standards" propounded by the Ohio Department of Education were used to suffocate independent thought and education, and to completely supplant independent school philosophy with state philosophy).

[FN207]. Pierce v. Society of Sisters, 268 U.S. 510, 535 (1925).

[FN208]. The Ottoman Empire developed a system for taking as prisoners from captured lands "young children, . . . reserved for the state and . . . sent to . . . [be] educated among the Turks. . . [and] employed in military service." M. FUAD KOPRULU, THE ORIGINS OF THE OTTOMAN EMPIRE 114 (Gary Leiser ed. & trans. 1992). The system successfully operated along the conquered frontier territories of the empire, territory that is now Bulgaria, Albania, Rumania, and the former Yugoslavia. See LORD KINROSS, THE OTTOMAN CENTURIES: THE RISE AND FALL OF THE TURKISH EMPIRE 344 (1977) (map).

[U]nder local supervision Christian villagers were to surrender all their male children between the ages of eight and twenty, who were brought to Istanbul where their Ottomanization began. . . . "So perfectly did the Palace School mold aliens of widely divergent race and creed to the Turkish type, and so thoroughgoing was the process of assimilation, that there are on record few instances of rebels . . . among officials educated within its walls."


KAREN BARKEY, BANDITS AND BUREAUCRATS: THE OTTOMAN ROUTE TO STATE CENTRALIZATION 31 (1994) (quoting Barnett Miller, quoted in Metin Kunt, Ethnic Regional (Cins) Solidarity in the Seventeenth-Century Ottoman Establishment, 5 INT'L J. MIDDLE E. STUD. 234 (1974)).

[FN209]. Adolph Hitler's core competency was his adeptness in using socialization techniques as a means of political control. Hitler wrote about his conception of ideal educational socialization:

It is of paramount interest to the state and the nation to prevent these ["splendid people"] from falling into the hands of bad, ignorant, or even vicious educators. The state, therefore, has the duty of watching over their education and preventing any mischief. It must exercise strict control over the press . . . . In the uniformity and constant repetition of this instruction lies its tremendous power. If anywhere, therefore, it is here that the state must not forget that all means must serve an end; it must not let itself be . . . talked into neglecting its duty and denying the nation the food which it needs and which is good for it; with ruthless determination it must make sure of this instrument of popular education, and place it in the service of the state and the nation.
. . . [I]n this school [the boy] must . . . learn to be silent not only when he is justly blamed but must also learn, when necessary, to bear injustice in silence. . . .
. . . .
. . . His citizen's diploma, a legal document which admits him to public activity, [should be issued]. . . .
. . . .
. . . Youth has its own state . . . . The ten year-old's bond with his playmate of the same age is more natural and greater than his bond with grown-ups. A boy who snitches on his comrade practices treason . . . .
. . . . [I]n the present method of teaching history a change must be made. . . . [O]ur historical education is directed by the nature of our political activity. . . .
. . . [I]n historic instruction an abridgment of the material must be undertaken. . . . [A]n advantage will later accrue to the individual from his knowledge, which summed up will also benefit the community . . . [and] the continued existence of our own nationality.
. . . .
Science, too, must be regarded by the folkish state as an instrument for the advancement of national pride. . . .
. . . .
Important as the type of physical and mental education will be in the folkish state, equally important will be the human selection as such.

ADOLPH HITLER, MEIN KAMPF 242, 414-15, 420-21, 426, 428 (Ralph Manheim trans., Houghton Mifflin Co. 1971) (1925).

[FN210]. Imperialist Japan had a policy similar to that of Nazi Germany, which it implemented during the period culminating in the Japanese Imperialism of World War II:

The overall educational system was geared to Japanese requirements. . . . The Ministry of Education asserted authority over all schools, including private Japanese and Western mission schools. . . . [T]he Japanese rejected the ideas of democracy and of equality in education. To the Japanese leaders, the purpose of education was . . . to provide competent citizens as a base for a strong state. . . . Education became an instrument of government that existed for the sake of the country and not for that of the students. Japan pioneered in authoritarian techniques of using education as a means of political tutelage.


MILTON W. MEYER, JAPAN: A CONCISE HISTORY 153-54 (3d ed. 1993).

[FN211]. Karl Marx and Frederick Engels set forth the Communist stance toward parental rights:

Abolition of the family! Even the most radical flare up at this infamous proposal of the Communists. . . .
. . . The bourgeois family will vanish . . . with the vanishing of capital.
Do you charge us with wanting to stop the exploitation of children by their parents? To this crime we plead guilty.
But, you will say, we destroy the most hallowed of relations, when we replace home education by social [education].
. . . .
The bourgeois clap-trap about the family and education, about the hallowed co-relation of parent and child . . . [is] disgusting . . . .
. . . .
The proletariat will use its political supremacy to wrest, by degrees, all capital from the bourgeoisie, to centralize all instruments of production in the hands of the State . . . .
. . . .
. . . [I]n the most advanced countries the following [methods] will be found pretty generally applicable: [ten items listed]

. . . .

10. Free education for all children in public schools[, and] [c]ombination of education with industrial production . . . .

KARL MARX & FRIEDRICH ENGELS, THE COMMUNIST MANIFESTO 33-34, 39-40 (Paul M. Sweezy trans., Modern Readers Paperback 1968) (1933). Engels further noted: "[Communism's influence on the family] will transform the relations between the sexes . . . . It can do this since it does away with private property and educates children on a communal basis, . . . [removing] the dependence . . . of the children on the parents." FRIEDRICH ENGELS, PRINCIPLES OF COMMUNISM 80 (Paul M. Sweezy trans., Modern Readers Paperback 1968) (1952).

Communists were as serious about the statist education and anti-family aspects of their agenda as they were about abolishing property rights. Unlike the Mennonites in Wisconsin of Yoder fame, for example, the Russian Mennonites had no constitutional protections to invoke when the Communists implemented their educational policies and subsumed the Russian Mennonite educational system as part of "the Great Terror." See JOHN B. TOEWS, CZARS, SOVIETS & MENNONITES 177-78 (1982).

[FN212]. Development of political attitudes in 1930s Iraq, an ex-province of the Ottoman empire, led Arab nationalists to reorient their thinking from "the Western tradition of Natural Law and rationalism" to that of "the Third Reich." COMMITTEE AGAINST REPRESSION AND FOR DEMOCRATIC RIGHTS IN IRAQ, SADDAM'S IRAQ: REVOLUTION OR REACTION? 91 (1986) (quoting BASSAM TIBI, ARAB NATIONALISM: A CRITICAL INQUIRY 100 (Marion Farouk-Sluglett & Peter Sluglett eds. & trans. 1981)). This philosophical shift away from natural law occurred as the Ba'th Socialist Party was beginning its formative development. Cf. id. at 92. In the first year of Ba'th Socialist Saddam Hussein's control of Iraq, Hussein apparently synthesized the state socialization tenets of previous totalitarian regimes:

Those comrades who are active in the sector of youth or concerned with its affairs . . . should recognise its importance and appreciate the significance of the words: "Win the young and safeguard the future". [sic]
Perhaps you have had no opportunity to ask yourself . . . what makes the youth the centre of so much attention in young countries and especially those which are working hard to change their present state for a better future by unconventional means, namely by revolutionary means?
. . . Why all this emphasis on youth, while not foregetting the role of every other sector in the new construction of society . . .?
. . . .
. . . [W]e find it inadequate to give the young the same kind of general attention given to society at large. To enable our youth to participate actively in the transformation process, we must . . . allocate for them a special programme in addition to the general one. . . . With the correct fashioning of our youth as a result of this approach, we shall safeguard the future and ensure [their] full utilisation . . . in the service of the revolutionary aims.
. . . .
. . . The ability of the young to . . . develop in response to the new ideas and principles of the transformation process is much greater . . .
. . . .
. . . [W]e must act speedily to stop all elements from adding to the foundations of the anti-revolutionary forces, whether in the form of action or the intellect. The best method for doing so is to . . . [w]in the young in order to stop new factors from strengthening the foundations of the counter- revolution . . . .
. . . .
. . . [W]hen we win the young we leave nothing substantial to the others.
. . . .
. . . [T]he care of the young can only be effected by elements that are competent educationally, intellectually and practically.
. . . .
Those who work among the young must be known for their experience and ability to win over the masses. Each one of them must be a psychologist so as to be able to tell when to speak and how to win over his listeners . . . . This is a matter which has a special relevance to work among youth.
The subsequent development of citizens depends to a large extent on their formation during their youth.
. . . .
How do we choose personnel for work among the youth? We must put the required specifications in regard to their age, education, morality and the Party's standard.
. . . .
In order to lead, you must convince the people you are leading that you are just, even when acting severely in matters which call for severity.

SADDAM HUSSEIN, SOCIAL AND FOREIGN AFFAIRS IN IRAQ 55-61 (Khalid Kishtainy trans. 1979) (1976).

Upon assuming the presidency, Hussein stated that "'the youth have no social awareness or political affinities"' and "'therefore the Party and the State should be their family, their father and mother."' EFRAIM KARSH & INARI RAUTSI, SADDAM HUSSEIN: A POLITICAL BIOGRAPHY 176-77 (1991) (footnote omitted). Saddam Hussein implemented his philosophy by enacting "[l]aws for . . . compulsory education . . . including imprisonment for those who failed to attend classes." Id. at 91.

[FN213]. These regimes were selected because they are associated with interests that were officially deemed so detrimental or offensive to the United States that the United States used military action to combat such interests in World War I, World War II, the Korean War, the Vietnam War, and the Persian Gulf War. This is not to suggest, of course, that a concern for parental rights or human rights was the primary motivation for the military intervention of the United States.

[FN214]. International Shoe v. Washington, 326 U.S. 310, 320 (1945) (citation omitted) (articulating this standard in the context of territorial jurisdiction procedural due process).

[FN215]. Totalitarian rationale maintains that children fare better when the state can care for them unimpeded by hinderance related to the antiquated rights of their oppressive parents. Yet the plight of children in China and Romania demonstrates that totalitarian systems have as poor a record in the management of children as they do in economic development and environmental protection.

For insight into China's Platonic management of children, see Carroll Bogert, Leaving Them to Starve, TIME, Jan. 15, 1996, at 42. The Human Rights Watch/Asia report "charges that the horrifying conditions in some orphanages make them virtual death camps," as well as "a nationwide practice of letting unwanted children die of starvation and abuse in state-run orphanages." Id. at 42.

[M]ore readily adoptable babies are kept in the main institute . . . while children marked for death [due to minor or major medical conditions] . . . are taken to the 'number two' institute . . . on Chongming Island, where foreigners don't get invited.
. . . A documentary last year by Britain's Channel 4, "The Dying Rooms," showed children tied to wooden toilets, sleeping in their own excrement . . . .
. . . .
. . . [T]he death rates among children in these institutions . . . are simply staggering. . . . [T]he ratio of deaths to new admissions exceeded 50 percent per year. . . . That's closer to a death camp than an orphanage; the death rate at Auschwitz was between 70 and 80 percent.
The vast majority of kids . . . are not orphans at all . . . . They're almost always girls, victims of the government's one-child-per-family policy . . . .
. . . [T]he $3,000 required "donation" to the Chinese [from American parents seeking adoption] is . . . a fortune for an orphanage that may be spending less than 25 cents a day to sustain the child. The Chinese may not want to give up the money.

Id. at 42-43.

China's atrocities against the family are often subconsciously downplayed as being an anomalous consequence of the Asian country's large population. Yet Nicolai Ceausescu's smaller Rumanian communist regime in Europe demonstrates that China's atrocities against children should not be attributed solely to China's concern with preventing population growth. Romania's population goals were a polar opposite to those of the Chinese regime. Yet the carefully documented organizational forces at work in Romania functioned in a similar manner to those in China and yielded similar results:

This dictatorial system used economic activity to serve the state, rather than to meet human needs. . . .
Central to Ceausescu's economic plan were specific pronatal policies to increase the population from 23 to 30 million people. . . . Women younger than 45 were expected to have five children. To enforce these policies, women were rounded up at their workplaces each month, taken to government clinics, and checked for pregnancy. . . . [P]regnancy was monitored . . . [with mandatory] "health checkups." . . . Unmarried persons over 25 and childless married couples . . . were assessed a special 30% tax on income.
A second Ceausescu policy, known as "systematization," severely hampered the ability of families to care for their children. . . . [Whole villages were relocated], with a devastating effect on extended family systems. The social networks that previously existed to help care for infants and small children, as well as children with special needs, were disrupted. . . . The state's full employment policy further negatively affected family caregiving. Women were required to return to the workplace after only three to six months of maternity leave . . . .
At the most basic level, therefore, the state's socioeconomic system affected the family's ability to care for small children and handicapped persons. . . . [T]he overarching solution to the problems associated with caring for children was institutionalization. Since doctors could be punished if a child died in their care, the tendency was to refer children to hospitals and institutions if there was any question about their health or home environment. . . . Without normal parenting, these children did not [learn] to walk or talk. . . . [They became] permanent residents of the institutional system. . . .
. . . Estimates suggest that [the number of Rumanian children in institutional care] may be as high as 200,000, or about 4% of the child population. Many different types of children's institutions exist [for different demographic categorizations]. . . .
. . . .
Once institutional care begins, it is difficult to change the decision. . . . [R]arely do committees recommend that children return home. . . . This occurs partly because institutions receive government funding based on the number of children in their care and partly because there are no social workers trained to work with the families . . . . Typically, therefore, children age into the next type or level of institutional care . . . indeterminately.

Alice K. Johnson et al., Foster Care and Adoption Policy in Romania: Suggestions for International Intervention, 72 CHILD WELFARE 489, 491-94 (1993) (citations omitted).

Monetary incentives do not disappear within a bureaucracy; they simply take on a different form from the incentives that impel a capitalist in a free market situation. Both bureaucratic and capitalist institutions have, by inherent design, built-in monetary incentives that prevent the institutions from adequately substituting for the family unit. This important lesson is worthy of some additional organizational economics scholarship.

[FN216]. "Culture" as used in this Comment refers to "[t]he cultivating or development (of the mind, faculties, manners, etc.); improvement or refinement by education and training. . . . The training, development, and refinement of mind, tastes, and manners; the condition of being thus trained and refined; the intellectual side of civilization." 4 THE OXFORD ENGLISH DICTIONARY 121 (2d ed. 1989).

"Cultural genocide," as used in this Comment refers to the deliberate, forcible extermination, alteration, homogenization, and/or supplanting of an existing culture. These efforts typically involve a combination of resource rationing, imposed socialization regimens, and infringement on family autonomy. The term does not include actions taken against a culture that are essential to defensively protect the rights of another society or nation from a clear and present danger.

[FN217]. Some Hispanics have utilized home education as a way to avoid public education that they believe incorporates the attitude that Hispanics are meant only for manual labor. Cf. Haya El Nasser, Hispanics Seek a Larger Role, USA TODAY, Mar. 2, 1992, at A3 (in an area torn by a dispute over pedagogy in which Hispanics threw eggs at Anglo school board officials during a meeting and phoned in death threats, Anita Montanez chose to teach her son and daughter at home).

See also Patrick Rogers & Karen Roebuck, Tongue Lashing: A Texas Judge's English-Only Order Ignites a Bilingual War of Words, PEOPLE, Sept. 25, 1995, at 111, 111. During a divorce custody hearing, the judge threatened bilingual, naturalized Mexican-American Martha Laureano with a loss of custody unless she spoke English with her child at home. The judge characterized speaking Spanish in the home as educational neglect, a form of "child abuse" that would "'relegat[e] [her daughter] to the position of a house maid." James C. Harrington, Taking Liberties: Racism Lingers in Texas Courts: The Judge Who Accused a Woman of Child Abuse for Speaking Spanish to Her Daughter Should Apologize and Then Resign from the Bench, 11 TEX. LAW., Sept. 11, 1995 (concluding also that since Ms. Laureano's other children were achieving academically, the judge had "interposed his personal bias to the detriment of a loving and nurturing family situation").

[FN218]. Native Americans have explained how public education was used as a tool in the United States campaign to undermine Native American culture:

[T]he fall of each year was pretty similar on many reservations across the United States and Canada. . . .
From the late 1800s until the 1960s, . . . no matter how much we fought it or hated it, we would be taken by car, bus or rail to the nearest government or parochial boarding school.
The U.S. government, in its infinite wisdom, decided in the late 1800s to figuratively--and in some cases it turned out literally--to "kill the Indian and save the child." Saving the child meant different things to the government than it did to the leaders of the different tribal entities.
Saving the child meant cleansing the mind of everything Indian. It meant removing any semblance of traditional [Native American] spirituality . . . .
It meant changing the exterior of the child also. This included shaved heads, identical uniforms . . . working as a child laborer for the institution . . . and attending classes where speaking the Native tongue was strictly forbidden.
I . . . [lived] on the Pine Ridge Reservation in South Dakota. . . .
At boarding schools the girls . . . did the things the supervisors believed were things they would need to know as women.
. . . .
. . . We were . . . issued our uniforms, which in the Bureau of Indian Affairs schools were actually military-type uniforms.
. . . We were lined up by company . . . had our names called out at roll call . . . . The table captains were actually like platoon sergeants. . . .
But I suppose the worst thing about going back to school was watching your parents drive away knowing full well that you wouldn't see them for nine months . . . .
. . . Many of us just sat down and cried. . . .
"Kill the Indian and save the child." I think that in many cases it turned out the other way around. Many of us died, mentally, emotionally and sometimes, physically, in those boarding schools.

Tim Giago (Nanwica Kciji), Back to School Meant Exile for Native Americans, DAILY HERALD (Provo, Utah), Aug. 31, 1995, at B4.

Although Giago's account may initially seem sensationalist or emotionally loaded, the experience he reports is paralleled with allegations of institutional brutality alleged by another author from a different tribe, reservation, and state:

[M]y homesickness only intensified.
Rules. Rules. So many rules. . . .
. . . .
The moon's . . . light . . . squeezed through a pair of steel-rail bunks and streaked through the ["bare, smooth" walls] of [New Mexico's Shiprock Boarding School on the Navajo Reservation].
. . . .
The stink of the inadequate facilities wafted across the room . . . .
. . . .
We had all been made to take showers . . . All of us had been literally forced in, two per shower. . . . I was just nine years old. . . . Around the drain . . . green matter jelled uninvitingly. . . .
In the morning, I'd have to wear those green overalls again. We were all dressed alike . . . . [We would have] roll call . . . .
. . . .
. . . [For "bed check" we] were commanded to stand at attention ["military style"] . . . .
. . . .
. . . There were many bullies [who "beat" younger children "badly" and took their money], and they all walked in packs, like mean wolves. [N]othing was done [when we complained to school authorities].
. . . .
The school did not have much playground equipment . . . .
The government boarding school historically has had one thing in mind for the Indian child--to remove him from the supposedly uncivilized Indian world and teach him to appreciate the white man's way. The Navajo language was to be verbally exterminated. This was government policy for more than several decades.
The Navajo way was the whole of our very lives. We had been brought fully by our parents into the Indian culture. Now, in boarding school, the indoctrination was directed to destroy all that our parents had taught us to cherish.
. . . .
In this school, we marched everywhere in military fashion. Wherever we went, we were told not to get caught speaking Navajo [or our mouths would be washed with lye soap]. . . .
[M]any times I was forced to stand and stare at the blank wall for hours on end. Or, if we used . . . incorrect grammar, we had to wear a sign around our necks that said "Dummy.". . .
. . . .
All the teachers were Anglos. The government required them to follow rigid policy and procedure sent from Washington to use in all reservation government schools. Part of this policy was regimentation and punishment . . .
Instruction was stiffly formal. Even the rows of runner chairs were nailed to the floor.
. . . .
There was no library. . . .
Normally . . . our day was highly organized, leaving enrollees little time to be on their own. Our routine of bed making, kitchen detail, and cleaning filled the hours before classes began.
. . . Our whole day was regulated by bells, clear until bedtime. The kitchen and dining room were poorly equipped. Meals [consisting of government surplus food] were eaten in silence along unadorned mess tables. . . . [A]fter meals, we were searched . . .
. . . .
. . . Some of our friends had run away but were caught by the Navajo police and brought back. There were stories of others who ran away during the winter months but . . . froze to death in their efforts to reach home.

GEORGE P. LEE, SILENT COURAGE: AN INDIAN STORY: THE AUTOBIOGRAPHY OF GEORGE P. LEE A NAVAJO 85-90, 92 (1987).

As Native Americans have struggled to defend their rights within a legal system that is unfamiliar to them, erroneous condemnation of Native American educational values have also occurred. See, e.g., In re McMillan, 226 S.E.2d 693, 694-95 (N.C. Ct. App. 1976) (finding that "the [lower] court [properly] exercised its control to interfere with the natural right of the parents in the best interest and welfare of the children" when it compelled the children to go to the school and found the parents guilty of criminal neylect); see also In re Baum, 382 N.Y.S.2d 672, 676 (Fam. Ct. 1976), aff'd, 401 N.Y.S.2d 514 (App. Div. 1978), appeal denied, 407 N.Y.S.2d 106 (1978) (Native American who felt that her child was and would continue to be subjected to racist instruction in contravention of Native American heritage, was deemed to be causing a "tragic" "retardation of the child's educational progress"; the child was ordered back to school); Hatch v. Goerke, 502 F.2d 1189, 1192 (10th Cir. 1974) (court rejected assertion that Native American's parental right to "inculcate in their children a knowledge of and respect for Indian customs, traditions and religious beliefs" was violated when a public school forced their son to come to school conforming to short hair and a "non-Indian standard of appearance," dismissing the case as one that "lacks constitutional substance").

As in many campaigns of cultural genocide, the "kill the Indian and save the child" campaign also involved using welfare agencies alleging parental neglect. This facilitated "'redistribution of . . . entire minor population[s] among . . . worthier members of the [white] community"' in the fashion contemplated and denounced in In re J.P., 648 P.2d 1364, 1376 n.11 (Utah 1982) (quoting H. Simpson, The Unfit Parent: Conditions Under Which a Child May Be Adopted Without the Consent of His Parent, 39 U. DETROIT L.J. 347, 355 (1962)). Around 30% of Native American children from 1969 to 1974 were permanently separated from their parents by government social workers who employed ill-defined standards of abuse that were based upon normative cultural and social suppositions. JOHN KAPLAN & ROBERT WEISBERG, CRIMINAL LAW: CASES AND MATERIALS (2d ed. 1991) (citing Byler, Removing Children: The Destruction of American Indian Families, 9 CIV. RTS. 19 (Summer 1977)).

Of course, the extensive agitation of another demographic group, African- Americans, relative to the impact of public education on their cultural history is well documented, and addressing all of the relevant literature is beyond the scope of this Comment. This Comment recognizes the relevance of their experience, including the forcible separation of families via the slave market, see generally, e.g., WILMA KING, STOLEN CHILDHOOD: SLAVE YOUTH IN NINETEENTH- CENTURY AMERICA (1995), but will not further explore such points here.

[FN219]. As previously mentioned, Wisconsin attempted to utilize compulsory attendance statutes and criminal law to force Old Order Amish Mennonite children to enroll in public schools. Wisconsin v. Yoder, 406 U.S. 205, 207-10 (1972). The attempt, part of a multi-state prosecution effort, see Brendan Stocklin-Enright, The Constitutionality of Home Education: The Role of the Parent, the State, and the Child, 18 WILLAMETTE L. REV. 563, 570-71 (1982), was partially thwarted by the United States Supreme Court. The Supreme Court observed that Wisconsin school district administrators sought a course that would "ultimately result in the destruction of the Old Order Amish church community as it exists in the United States today," because high school education "places Amish children in an environment hostile to Amish beliefs" and "takes them away from their community, physically and emotionally, during the crucial and formative adolescent period of life." Yoder, 406 U.S. at 211-12.

In a perhaps less widely known parallel to the Yoder events, the United States government utilized political, economic, and military pressure to impose a public school system on the Territory of Utah. The effort culminated with provisions encoded in the Edmunds-Tucker Act and the Enabling Act for Utah Statehood. See LEONARD J. ARRINGTON & DAVIS BITTON, THE MORMON EXPERIENCE: A HISTORY OF THE LATTER-DAY SAINTS 253 (1980). Statehood was premised on a requirement "[t]hat provision shall be made for the establishment and maintenance of a system of public schools, which shall be open to all the children of said State and free from sectarian control." Utah Enabling Act, ch. 138, 3, 28 Stat. 107 (1894); see also id. 6, 9-11.

Not coincidentally, the population of Utah at the time was overwhelmingly members of the Church of Jesus Christ of Latter-day Saints, a religion that was unpopular at the time. Joseph Smith, Jr., the founder of the church, espoused an unusual educational methodology that conflicted with the conventional educational trends in the latter half of the nineteenth century. Members were to "teach one another words of wisdom . . . seek[ing] learning even by study and also by faith," and were also to "prepare every needful thing . . . and establish a house of . . . learning." THE DOCTRINE AND CONVENANTS OF THE CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS, 88:118. People were to be taught "correct principles" and then left to "govern themselves." Discourse by Elder John Taylor (May 18, 1862), in 10 JOURNAL OF DISCOURSES 49, 57-58 (1967) (quoting Joseph Smith, Jr.). Saints were to "stand fast in this liberty wherewith [they had] been made free . . . [and] trust no one to be [their] teacher . . . except he be a man of God, walking in his ways and keeping his commandments." THE BOOK OF MORMON: ANOTHER TESTAMENT OF JESUS CHRIST, Mosiah 23:13-14.

Consistent with these principles, Brigham Young stated, "I am opposed to free education as much as I am opposed to taking away property from one man and giving it to another," Discourse by President Brigham Young (Apr. 6, 1877), in 18 JOURNAL OF DISCOURSES 353, 357 (1967), and added that he was "opposed to free schools, and to all legislation in favor of free schools." A Mormon Tramp, SALT LAKE TRIB., Jan. 23, 1877, at 2. The theme continued through the administration of Church President Joseph F. Smith, who included the issue in his remarks to the Church:

I hope that I may be pardoned for giving expression to my real conviction with reference to the question of education in the State of Utah. The government of the State has provided for the common schools up to the eighth grade . . . . In addition to these, we are having forced upon the people high schools throughout every part of the land. I believe that we are running education mad. . . . [B]urdens are placed upon the tax payers of the state to teach the learning or education of this world. God is not in it. . . [W]e have to establish Church schools or institutions of education . . . that our children may have the advantages of moral training in the their youth. I know that I shall be criticized by professional "lovers of education" . . . in relation to this matter.

Discourse by President Joseph F. Smith (Oct. 3, 1915), in 86TH SEMI-ANNUAL CONFERENCE REPORT 1, 4.

Early Church officials such as George Q. Cannon, and President John Taylor, also helped to mount a vehement, but ultimately unsuccessful, forty-year campaign to preserve an effective, functioning, long-existing Church educational system. See A Mormon Tramp, supra at 2; Discourse by President John Taylor (Dec. 8, 1878), in 20 JOURNAL OF DISCOURSES 102, 107-08 (1967); Discourse by President John Taylor (Apr. 8, 1879), in 20 JOURNAL OF DISCOURSES 174, 174-79 (1967). In the end, the Mormon population simply could not withstand the financial pressure of being forced to sustain parallel educational systems.

[FN220]. See In re J.P., 648 P.2d at 1376 ("[I]t is proper to take alarm at the first experiment on our liberties.") (quoting Memorial and Remonstrance Against Religious Assessments, 8 THE PAPERS OF JAMES MADISON 298, 300 (Rutland & Rachal eds., 1973)).

[FN221]. Murphy v. Arkansas, 852 F.2d 1039, 1041-42 (8th Cir. 1988).

[FN222]. Curiously, public discourse has tended to focus primarily on the damage done to oppressed subcultures via the wrongful seizure of physical property, the denial of free expression, or the denial of political representation. Yet the major, concerted campaigns against various ethnic, racial, and religious minorities in the United States have historically tended to involve both a deprivation of property rights and an assault on the family structure of the subculture. In the United States, wide-scale assaults on the family typically have been spearheaded by public education and government social services departments, often on pretenses of education, public morality, and/or the welfare of the children.

Arguably, forcibly severing family relationships has proven to be an even more potent method for destroying cultural structures.

[FN223]. People v. Bennett, 501 N.W.2d 106, 117 n.33 (Mich. 1993).

[FN224]. The Bennett court erred in a second respect, assuming that someone who invests personal time with a child is less concerned than someone who is financially motivated to monitor someone else hired to teach their child.

[FN225]. The Bennett's family income was insufficient to simultaneously support the demands of both taxes for public education and tuition for private schools. Bennett, 501 N.W.2d at 108 n.3. The impossibly narrow teacher certification requirements, upheld in Bennett, also effectively precluded the Bennetts from providing a home education for their children. Thus, for a family so situated, compulsory attendance laws have the de facto effect of mandating that the children attend public school.

High income parents effectively have more parental rights than low income families, since the cost barriers created by taxation for education can more easily be hurdled. Many such families, including many politicians who are decidedly "pro-public education" in determining political policy (for example, the families of President Bill Clinton, Senator Edward Kennedy, and Mayor Marion Barry) use private education for their own children. Cf., e.g., Lee Davidson, Hatch Sees Hypocrisy in Stalling City Kid's Aid, DESERET NEWS (Salt Lake City, Utah), May 7, 1992, at B14 ("no key Education Department Officials or members of congressional education committees" had children in the struggling District of Columbia public school system; Senator Edward Kennedy "sent all his children to some of the country's most expensive private schools"; congressmen that did use public education did so within "two systems [one in Maryland, one in Virginia] considered among the best in the nation"); Fred Barnes, National Capital, National Shame, READER'S DIG., Nov. 1989, at 106, 108 (Mayor Marion Barry and 533 of the 535 members of Congress chose alternatives to Washington's public education system).

The de facto result of the current legal and socioeconomic system is that wealthy parents enjoy a substantially expanded parental right when compared to poor parents. Some go so far as to assert that by "[u]sing school as a sorting mechanism, we appear to be on the way to creating a caste system, complete with untouchables who wander through subway trains begging and [who] sleep on the streets." Gatto, Why Schools Don't Educate, supra note 17, at 24. A prerequisite to addressing this inequity is respecting the expansive rights of all parents.

[FN226]. Cf. Bennett, 501 N.W.2d at 117 nn.33 & 39 (postulating that parents who use public schools are more likely to demand "quality education" for their children, and expressing the hope that "regulators [can] find a regulatory scheme that would allow the flexibility needed by the home school proponents without leading to abuses").

[FN227]. See id. at 108 n.3, 109 n.7, 120. The Bennetts could not afford private school tuition, and could not home educate because they did not qualify for the teacher certification requirement upheld by the court as prerequisite for operating.

[FN228]. See, e.g., Dana Hawkins, Homeschool Battles: Clashes Grow as Some in the Movement Seek Access to Public Schools, U.S. NEWS & WORLD REP., Feb. 12, 1996, at 57, 57-58:

[A] request by homeschoolers to join in particular classes and activities ["polarized townspeople" at Orange, Massachusetts] . . . . "It's not fair for them . . . [not to] pay[] the[ir] dues," says Nadine Parsons, who, with help from her son Matt . . . circulated a petition last spring to deny homeschoolers access. . . . "We were told we weren't part of the school community; it didn't matter that our kids had played Little League with theirs," said Anita McDowell. "We never expected it to get so ugly."


In reality, of course, tax-paying alternative educators "pay their dues" by subsidizing the education of other parents' children. See Christofferson, supra note 178, at 1 (explaining how alternative educators must pay taxes and then pay private tuition); see also Jonathan Kaufman, Grade Inflation: Suburban Parents Shun Many Public Schools, Even the Good Ones: Eager to Give Their Children Any Edge, They Scrimp to Pay Pricey Tuitions: Angst, Guilt at $15,000 a Year, WALL ST. J. (Western ed.), Mar. 1, 1996, at A1, A8. Encouragingly, the article suggests that people harboring this hostility can reverse their position dramatically:

"Two years ago, I thought this [home education] thing would phase out," says Patricia Lines, a senior research analyst who monitors homeschooling trends. . . .
. . . .
[Interaction with the diverse home education community] could increase the public's acceptance of homeschooling [over the long term]. So could more interaction . . . . Matt Parsons says he won't be passing around any more petitions. One of his best pals now is a homeschooler who plays on his school's basketball team. "Once you meet them, you realize they're just like yourself," says the 16-year-old. . . . This past year, 10 more students left Mohar to be schooled at home.

Hawkins, supra at 57-58. Unfortunately, the changes in attitude often come too late for those who have to endure harassment from the community. For some possible solutions to this difficulty, see Appendix B, infra.

[FN229]. See Mawdsley, supra note 19, at 274; see also Cornwell v. State Bd. of Educ., 428 F.2d 471, 472 (4th Cir. 1970). Maryland State Board of Education bylaw provided that "[i]t is the responsibility of the local school system to provide a comprehensive program of family life and sex education in every elementary and secondary school for all students as an integral part of the curriculum." The court upheld dismissal of First Amendment and Fourteenth Amendment parental rights challenges to the bylaw, affirming the lower court decision that such a claim was not substantial enough to even justify jurisdiction.

Thus, although parents apparently cannot "replace state educational requirements with their own idiosyncratic views of what a child needs to be a productive and happy member of society," Bennett, 501 N.W.2d at 112 n.18 (quoting Wisconsin v. Yoder, 406 U.S. 205, 239 (1972)), public educators are allowed to impose their sundry pedagogical and philosophical views on the children of others with little restriction. Public educators and social workers are allowed to invoke their own idiosyncratic theories to override parental wishes, even when such state agents may arguably have a poor track record for anticipating the demands of a future economy and society.

[FN230]. See, e.g., Commonwealth ex rel. Sch. Dist. of Pittsburgh v. Ross, 330 A.2d 290 (Pa. Commw. Ct. 1975). In that case, the parents' daughter was slammed against a wall by students at school, and their son was assaulted at the same school by another student who used scissors in commission of the battery. The parents, fearing that school arrangements were inadequate for the health and safety of their children, withdrew the children from school. The court determined that it had the authority to override the parents' judgment that the children's health and safety were threatened, and ordered the children back to school without any additional security provisions.

Presumably, under such reasoning, public educators could compel parents to send a child to school even if parents feared that a child molester was on the staff, so long as the school persuaded the court that there was no positive and immediate threat to the child's health and safety.

[FN231]. In the widely adopted, landmark decision Peter W. v. San Francisco Unified Sch. Dist., 131 Cal. Rptr. 854 (Cal. Ct. App. 1976), the court determined that:

Unlike the activity of the highway or the marketplace, classroom methodology affords no readily acceptable standards of care, or cause, or injury. The science of pedagogy itself is fraught with different and conflicting theories of how or what a child should be taught . . . . The "injury" claimed here is [high school graduate] plaintiff's inability to read and write. Substantial achievement of literacy in the schools, or its failure, are influenced by a host of factors which affect the pupil subjectively, from outside the formal teaching process, and beyond the control of its ministers. They may be physical, neurological, emotional, cultural, environmental; they may be present but not perceived, recognized but not identified.

Id. at 860-61. The court further ruled that public school officials have a duty to exercise reasonable care respecting students' physical safety, but no legal duty of care respecting the students' academic development. Id. at 858, 861. Public educators also were deemed to have no duty to exercise reasonable care to report and properly represent a student's academic status to the student's parents. Id. at 862-63.

Thus, public educators have successfully disclaimed almost all personal or institutional civil liability respecting their students' academic development, on the theory that such a duty of care "would expose them to the tort claims . . . of disaffected students and parents in countless numbers," resulting in an incalculable burden on public schools and society "in terms of public time and money." Id. at 854.

At the same time, parents who assert direct control of their children's educations, in violation of statutorily articulated educational objectives that public schools are supposedly required to achieve, face potentially severe civil and criminal sanctions. Parents can be fined, imprisoned, and/or deprived of custody even when the evidence suggests that their child has benefitted from the parents' course of action. See, e.g., Jernigan v. State, 412 So.2d 1242 (Ala. Crim. App. 1982); People v. Turner, 263 P.2d 685 (Cal. App. Dep't Super. Ct. 1953); State v. M.M., 407 So.2d 987, 989 (Fla. Dist. Ct. App. 1981); State v. Lowry, 383 P.2d 962, 963 (Kan. 1963); State v. Newstrom, 371 N.W.2d 525, 527 (Minn. 1985); State v. Edgington, 663 P.2d 374, 376 (N.M. Ct. App. 1983); State v. Whisner, 351 N.E.2d 750, 752-53 (Ohio 1976); State v. Bowman, 653 P.2d 254 (Or. Ct. App. 1982); State v. Superior Court, 346 P.2d 999, 1000-01 (Wash. 1959) (en banc).

[FN232]. See Carlson, supra note 189, at 90. Many families are presented with a difficult choice: face financial ruin and loss of reputation by enduring litigation, or concede to the demands of the state. Many are trying to mitigate this problem by pooling research resources, legal expertise, and political influence. Carlson, supra, at 90. Indeed, one such organization, the Home School Legal Defense Fund, was involved in Bennett and DeJonge cases, helping them to mount an effective legal defense. See People v. Bennett, 501 N.W.2d 106, 107 (Mich. 1993); People v. DeJonge, 501 N.W.2d 127, 129 (Mich. 1993).

[FN233]. 262 U.S. 390, 401-02 (1923) (repudiating Plato's concept of socialization for his Ideal Commonwealth).

[FN234]. Recall the discussions from supra parts IV.D.4-5 and IV.E.3-4.

[FN235]. Bennett, 501 N.W.2d at 115-16; see also In re Valenti, 224 Cal. Rptr. 10, 12 (Cal. Ct. App. 1986).

[FN236]. See DeJonge, 501 N.W.2d at 137, 138.

[FN237]. PHI DELTA KAPPAN, Mar. 1987, at 510.

[FN238]. Id.

[FN239]. Id.

[FN240]. Id.

[FN241]. Id. at 512.

[FN242]. Id. at 513.

[FN243]. Id. at 514 (quoting uncited American Civil Liberties Union Policy statement).

[FN244]. Id. at 514-15.

[FN245]. Id. at 515-16.

[FN246]. Id. at 516.

[FN247]. Id. at 517.


END OF ORIGINAL DOCUMENT



NOTE: This article was published in 1996. At that time, the state of the law was such that it was correct to indicate in footnote 38 and the surrounding text that "the case law language is so confused that it is susceptible to widely divergent interpretations [about whether the right to direct the upbringing of a child is a 'fundamental' federal constitutional right subject to strict scrutiny]." Witte's comment called for "a decisive, comprehensive, well-reasoned, and articulate United States Supreme Court opinion respecting parental rights" in order "to remedy this current state of confusion."

Four years later, the precise legal question finally found its way to the United States Supreme Court in Troxel v. Granville, 530 U.S. 57 (2000). At that time, the justices were put in possession of hard copies of the same Witte comment that is now set forth on this web page. As reflected in Justice Scalia's dissent, Scalia and some of the other justices debated the comment's propositions that 1) parental liberty was regarded to be an inherent fundamental right from the time of the Declaration of Independence onward, and 2) parental liberty was protected by, inter alia, the Ninth and Fourteenth Amendments (the Fourteenth Amendment has been interpreted to be both an original source of constitutional rights and a legal mechanism for incorporating other amendments to apply against the states).

A five-justice majority (Chief Justice Rehnquist and Justices O'Connor, Thomas, Ginsburg, and Breyer) acknowledged that the right to direct the upbringing of one's child is not only a multi-faceted federal constitutional right protected by the Fourteenth Amendment, but a "fundamental" right to boot. As Justice Thomas noted in his concurrence, "fundamental" rights are entitled to "strict scrutiny" deference under principles of traditional constitutional jurisprudence. In other words, Troxel adopted the precise legal paradigm advocated in Witte's comment, and lower courts have (for the most part) subsequently acknowledged that parental liberty is constitutionally protected.

In footnotes 106-08 and the surrounding text, Witte's comment predicted that some secular conservatives (those in the Robert Bork tradition) would eschew originalist analysis and attempt to deny any constitutional protection to parental liberty. Justice Scalia's dissent also vindicated Witte's observation in that regard.

Footnote 23 of Witte's comment observed that there are several potentially overlapping sources of protection for parental liberty in addition to (or in conjunction with) the Ninth Amendment. Justice Thomas seemed to agree. In his final, succinct, revised concurrence, Thomas sidestepped the Scalia's broadside and instead cursorily mentioned the Due Process and Privileges and Immunities Clauses of the Fourteenth Amendment as two of the possible sources for parental rights.

Troxel provided an adequate and clear answer about the practical test for constitutional protection of parental liberty. But because of the unusual and narrow majority on the Court that supported parental liberty, and the economic incentives to destroy parental liberty that are set forth in Witte's comment, it is anticipated that protection of parental liberty will require ongoing vigilance. Opponents of parental liberty will continue to try to overturn or limit the holding in Troxel, just as they once used State v. Hoyt, 146 A. 170 (N.H. 1929) to disregard previous United States Supreme Court precedent and plunge alternative education into a long dark age.





Back to:
1) Index of Quaqua Legal and Historical Pages
2) History
3) Legal Resources
4) Quaqua Society Home Page